Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company. (b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount. (c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.
Appears in 3 contracts
Sources: Annual Report (Chart House Enterprises Inc), Subordinated Debt Agreement (Chart House Enterprises Inc), Subordinated Debt Agreement (Chart House Enterprises Inc)
Guaranty. Each Guarantor, jointly and severally with each other Guarantor, unconditionally and irrevocably guarantees to the Holders the due, prompt and complete payment by the Company of the principal of, Make-Whole Amount, if any, LIBOR Breakage Amount, if any, and interest on (a) Guaranty including interest accruing or becoming owing subsequent to the commencement of Payment any bankruptcy, reorganization or similar proceeding involving the Company), and Performance. The Parent hereby guarantees ----------------------------------- to Holder each other amount due under, the full Notes and punctual payment the Note Purchase Agreement, when and as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration declaration or otherwise) in accordance with the terms of the Notes and the Note Purchase Agreement (the Notes and the Note Purchase Agreement being sometimes hereinafter collectively referred to as the “Note Documents” and the amounts payable by the Company under the Note Documents (including any reasonable attorneys’ fees and expenses), as well being sometimes collectively hereinafter referred to as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "“Obligations"”), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty Guaranty is an absolute, unconditional and continuing a guaranty of the full and punctual payment and performance not just of all of the Obligations and not of their collectability only collectibility and is in no way conditioned or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to upon any collateral security other event, contingency or other means of obtaining paymentcircumstance whatsoever. Should If for any reason whatsoever the Company default in shall fail or be unable duly, punctually and fully to pay such amounts as and when the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, same shall become immediately due and payable to Holderpayable, each Guarantor, without demand demand, presentment, notice of acceleration, notice of intent to accelerate, protest or notice of any naturekind, all of which are expressly waived by the Parent. Payments by the Parent hereunder may will forthwith pay or cause to be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made paid such amounts to the HolderHolders under the terms of such Note Documents, in lawful money of the manner and United States, at the place of payment specified therefor for payments hereunder in the Note Purchase Agreement, or perform or comply with the same or cause the same to be made by performed or complied with, together with interest (to the extent provided for under such Note Documents) on any amount due and owing from the Company.
(b) Parent's Agreement to Pay Enforcement Costs. Each Guarantor, etc. The Parent ------------------------------------------------ further agreespromptly after demand, as the principal obligor and not as a guarantor only, to will pay to Holder, on demand, all the Holders the reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when collecting such amounts become due until paymentor otherwise enforcing this Guaranty, whether before or after judgmentincluding, at without limitation, the rate reasonable fees and expenses of interest set forth in (S)1 hereofcounsel. Notwithstanding the foregoing, provided that if such interest exceeds the maximum amount permitted right of recovery against each Guarantor under this Guaranty is limited to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable extent it is judicially determined with respect to any Guarantor that entering into this Guaranty would violate Section 548 of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the United States Bankruptcy Code or any comparable provisions of any instrument evidencingstate law, securing or otherwise executed in connection with any Obligation and agrees which case such Guarantor shall be liable under this Guaranty only for amounts aggregating up to the largest amount that the would not render such Guarantor’s obligations hereunder subject to avoidance under Section 548 of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company United States Bankruptcy Code or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals comparable provisions of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentstate law.
Appears in 3 contracts
Sources: Master Note Purchase Agreement (United Stationers Inc), Master Note Purchase Agreement (United Stationers Inc), Subsidiary Guaranty (United Stationers Inc)
Guaranty. The Guarantor hereby irrevocably and unconditionally guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Notes or the Note Agreement (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security other guarantor of the Notes, if any, or upon any other means of obtaining paymentaction, occurrence or circumstance whatsoever. Should In the event that the Company shall fail to pay any of such Guaranteed Obligations, the Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the United States of America, pursuant to the requirements for payment specified in the Notes and the Note Agreement. Each default in the payment or performance of any of the ObligationsGuaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. The Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement. The Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by the Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes or the Note Agreement, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Guaranty Agreement. Notwithstanding any provision to the contrary contained herein or in the Note Agreement or the Notes, the obligations of the Parent hereunder with respect Guarantor under this Guaranty Agreement, the Note Agreement and the Notes shall be limited to an aggregate amount equal to the largest amount that would not render such Obligations in default shall, upon demand by Holder, become immediately due and payable obligations subject to Holder, without demand avoidance under the federal bankruptcy laws or notice any comparable provision of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etcapplicable state law. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation Guarantor hereby acknowledges and agrees that the Guarantor’s liability hereunder is joint and several with any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) Notes and the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentAgreement.
Appears in 3 contracts
Sources: Note Purchase Agreement (Westar Energy Inc /Ks), Guaranty Agreement (Evergy, Inc.), Guaranty Agreement (Evergy, Inc.)
Guaranty. (a) Guaranty Each Guarantor, jointly and severally with each other Guarantor, unconditionally and irrevocably guarantees to the Holders the due, prompt and complete payment by the Company of Payment the principal of, Make-Whole Amount, if any, and Performance. The Parent hereby guarantees ----------------------------------- to Holder interest on, and each other amount due under, the full Notes or the Note Purchase Agreement, when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration declaration or otherwise), as well ) in accordance with the terms of the Notes and the Note Purchase Agreement (the Notes and the Note Purchase Agreement being sometimes hereinafter collectively referred to as the performance“Note Documents” and the amounts payable by the Company under the Note Documents, of and all other monetary obligations of the indebtedness and other amounts owing under this Note (collectivelyCompany thereunder, being sometimes collectively hereinafter referred to as the "“Obligations"”), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty Guaranty is an absolute, unconditional and continuing a guaranty of the full and punctual payment and performance not just of all of the Obligations and not of their collectability only collectibility and is in no way conditioned or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to upon any collateral security other event, contingency or other means of obtaining paymentcircumstance whatsoever. Should If for any reason whatsoever the Company default in shall fail or be unable duly, punctually and fully to pay such amounts as and when the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, same shall become immediately due and payable to Holderpayable, each Guarantor, without demand demand, presentment, protest or notice of any naturekind, all of which are expressly waived by the Parent. Payments by the Parent hereunder may will forthwith pay or cause to be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made paid such amounts to the HolderHolders under the terms of such Note Documents, in lawful money of the manner and United States, at the place of payment specified therefor for payments hereunder in the Note Purchase Agreement, or perform or comply with the same or cause the same to be made by performed or complied with, together with interest (to the extent provided for under such Note Documents) on any amount due and owing from the Company.
(b) Parent's Agreement to Pay Enforcement Costs. Each Guarantor, etc. The Parent ------------------------------------------------ further agreespromptly after demand, as the principal obligor and not as a guarantor only, to will pay to Holder, on demand, all the Holders the reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when collecting such amounts become due until paymentor otherwise enforcing this Guaranty, whether before or after judgmentincluding, at without limitation, the rate reasonable fees and expenses of interest set forth in (S)1 hereofcounsel. Notwithstanding the foregoing, provided that if such interest exceeds the maximum amount permitted right of recovery against each Guarantor under this Guaranty is limited to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable extent it is judicially determined with respect to any Guarantor that entering into this Guaranty would violate Section 548 of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the United States Bankruptcy Code or any comparable provisions of any instrument evidencingstate law, securing or otherwise executed in connection with any Obligation and agrees which case such Guarantor shall be liable under this Guaranty only for amounts aggregating up to the largest amount that the would not render such Guarantor’s obligations hereunder subject to avoidance under Section 548 of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company United States Bankruptcy Code or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals comparable provisions of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentstate law.
Appears in 3 contracts
Sources: Note Purchase Agreement (Helmerich & Payne Inc), Note Purchase Agreement (Lincare Holdings Inc), Note Purchase Agreement (Elkcorp)
Guaranty. (a) Guaranty of Payment In consideration of, and Performance. The Parent in order to induce the Banks to make the Loans hereunder, the Guarantors hereby guarantees ----------------------------------- to Holder absolutely, unconditionally and irrevocably, jointly and severally guarantee the full and punctual payment and performance when due (due, whether at stated maturity, by required pre-payment, by acceleration or otherwise, of the Obligations, and all other obligations and covenants of the Company now or hereafter existing under this Agreement, the Notes and the other Loan Documents whether for principal, interest (including interest accruing or becoming owing both prior to and subsequent to the commencement of any proceeding against or with respect to the Company under any chapter of the Bankruptcy Code), as well as Fees, commissions, expenses (including reasonable attorneys' fees and expenses) or otherwise, and all reasonable costs and expenses, if any, incurred by the performance, of all of the indebtedness and other amounts owing Agent or any Bank in connection with enforcing any rights under this Note Guaranty (collectively, all such obligations being the "Guaranteed Obligations"), including and agree to pay any and all reasonable expenses incurred by each Bank and the Agent in enforcing this Guaranty; provided that notwithstanding anything contained herein or in any of the Loan Documents to the contrary, the maximum liability of each Guarantor hereunder and under the other Loan Documents shall in no event exceed such Obligations which would become due but Guarantor's Maximum Guaranteed Amount, and provided further, each Guarantor shall be unconditionally required to pay all amounts demanded of it hereunder prior to any determination of such Maximum Guaranteed Amount and the recipient of such payment, if so required by a final non-appealable order of a court of competent jurisdiction, shall then be liable for the operation refund of the automatic stay pursuant to any excess amounts. If any such rebate or refund is ever required, all other Guarantors (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(bCompany) and 506(b) of shall be fully liable for the Federal Bankruptcy Coderepayment thereof to the maximum extent allowed by applicable law. This guaranty Guaranty is an absolute, unconditional unconditional, present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity action, occurrence or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generallycircumstance whatsoever. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and Each Guarantor agrees that the obligations Guaranteed Obligations may at any time and from time to time exceed the Maximum Guaranteed Amount of such Guarantor without impairing this Guaranty or affecting the rights and remedies of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentBanks hereunder.
Appears in 3 contracts
Sources: Credit Agreement (Group Maintenance America Corp), Credit Agreement (Group Maintenance America Corp), Credit Agreement (Group Maintenance America Corp)
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each Noteholder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount (if any), prepayment premium (if any) and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations"), including Note Purchase Agreement or any other Finance Document executed in connection therewith (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the Noteholders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Purchase Agreement. Each default in payment 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 any law firm or external counsel) which such Noteholder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Purchase Agreement or any rescissionsother Finance Document, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms 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 Note or Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote 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. Guarantor hereby unconditionally and irrevocably -------- guarantees to each Beneficiary as their respective interests may appear: (a) Guaranty the due, punctual and full payment by Lessee of Payment all amounts (including, without limitation, amounts payable as damages in case of default) to be paid by Lessee pursuant to the Construction Agency Agreement, the Lease, the Participation Agreement and Performance. The Parent hereby guarantees ----------------------------------- any other Operative Documents to Holder the full and punctual payment when due (which Lessee is or is to be a party, whether at stated maturity, by required pre-payment, by acceleration such obligations now exist or otherwise)arise hereafter, as well as and when the performancesame shall become due and payable, in accordance with the terms thereof; and (b) the due, prompt and faithful performance of, and compliance with, all other obligations, covenants, terms, conditions and undertakings of all of Lessee contained in the indebtedness Construction Agency Agreement, the Lease, the Participation Agreement or any other Operative Document to which Lessee is or is to be a party in accordance with the terms thereof (such obligations referred to in clauses (a) ----------- and other amounts owing under this Note (collectively, b) above being hereinafter called the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ Guarantor further agrees, as the principal obligor and not as a guarantor only, --- ----------- agrees to pay to Holder, on demand, any and all reasonable costs and expenses (including court costs reasonable fees and reasonable legal expenses, including the allocated cost disbursements of staff counsel) that may be paid or incurred by any Beneficiary in collecting any Obligations and/or in preserving or expended by Holder in connection with enforcing any rights under this Guaranty or under the Obligations. The Guaranty is an unconditional and irrevocable guaranty of payment, this guaranty performance and compliance and not of collectability, is in no way conditioned or contingent upon any attempt to collect Guaranty from or enforce performance or compliance by Lessee, and shall be binding upon and against Guarantor without regard to the enforcement thereofvalidity or enforceability of the Construction Agency Agreement, the Lease, the Participation Agreement or any other Operative Document. If for any reason whatsoever Lessee shall fail or be unable duly, punctually and fully to pay such amounts as and when the same shall become due and payable or to perform or comply with any such obligation, covenant, term, condition or undertaking, Guarantor will immediately pay or cause to be paid such amounts to the Person or Persons entitled to receive the same (according to their respective interests) under the terms of the Operative Documents, as appropriate, or perform or comply with any such obligation, covenant, term, condition or undertaking or cause the same to be performed or complied with, together with interest on amounts recoverable hereunder any amount due and owing from the time when such amounts date the same shall have become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees payable to the provisions date of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentpayment.
Appears in 3 contracts
Sources: Participation Agreement (Electric Lightwave Inc), Participation Agreement (Electric Lightwave Inc), Participation Agreement (Electric Lightwave Inc)
Guaranty. (a) Guaranty Guarantor hereby absolutely, irrevocably and unconditionally guarantees the due, punctual and complete payment and performance of Payment each and Performance. The Parent hereby guarantees ----------------------------------- every obligation of Purchaser under the Limited Notice to Holder Proceed and work under and pursuant to the full Contracts occurring on or before the Financial Close for the Project, whether such obligation presently exists or is created, incurred or arising from time to time hereafter, all as and punctual payment when due (whether at stated maturityrequired to be performed under the Limited Notice to Proceed and the Contracts, by required pre-paymentin all respects strictly in accordance with the terms, by acceleration or otherwise), as well as conditions and limitations contained in the performance, of all of Limited Notice to Proceed and the indebtedness and other amounts owing under this Note Contracts (collectively, the "“Guaranteed Obligations"”), including all such Obligations which would become due but and agrees that if for the operation of the automatic stay pursuant any reason whatsoever Purchaser shall fail or be unable to (S)362(a) of the Federal Bankruptcy Code duly, punctually and the operation of (S)(S)502(b) fully pay or perform any Guaranteed Obligation as and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolutewhen due, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default Guarantor shall, in the payment or event of a Purchaser Event of Default in performance of any of the ObligationsGuaranteed Obligations by Purchaser under the Limited Notice to Proceed and the Contracts, the obligations upon written demand of IFCO, with prior written notice to Purchaser, forthwith pay or perform or cause to be performed such Guaranteed Obligation, without regard to any exercise or non-exercise by IFCO of any right, remedy, power or privilege under or in respect of the Parent hereunder with respect Limited Notice to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty Proceed and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generallyContracts against Purchaser. Without limiting the generality of the foregoing, the Parent agrees foregoing and notwithstanding anything herein to the provisions contrary, a termination of any instrument evidencingthe Limited Notice to Proceed and the Contracts by IFCO for an Event of Default by Purchaser occurring on or before the date of the Financial Close for the Project, securing if any, shall not impair, diminish, release or otherwise executed in connection with any Obligation affect Guarantor’s obligations hereunder. This Guaranty is a guarantee of payment and agrees that the obligations performance and not of the Parent collection. All payments by Guarantor hereunder shall not be released or discharged, made by deposit of immediately available funds to an account identified by IFCO. The Guarantor hereby guarantees that payments hereunder shall be made in whole or U.S. Dollars and in part, or otherwise affected by the manner required for the relevant payment due from Purchaser under the Limited Notice to Proceed. This Guaranty shall continue in full force and effect until the earlier of (i) Financial Close for the failure of Holder to assert any claim Project or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation Purchaser or renewals of any Obligation; (iii) any change in the time, place Guarantor shall have satisfactorily performed or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of fully discharged all of the Guaranteed Obligations); provided, all of which may be done without notice however notwithstanding any provision in this Guaranty to the Parentcontrary, Guarantor shall have the full benefit of all defenses, setoffs, counterclaims, reductions, diminution or limitations of any Guaranteed Obligations available to Purchaser pursuant to or arising from the Limited Notice to Proceed and the Contracts or otherwise and Guarantor’s obligations and liability arising from this Guaranty shall be no greater than that of Purchaser under the Limited Notice to Proceed and the portions of the Contracts to be performed prior to the Financial Close for the Project.
Appears in 3 contracts
Sources: Multiple Hearth Furnace Contract (Ada-Es Inc), Multiple Hearth Furnace Contract (Ada-Es Inc), Multiple Hearth Furnace Contract (Ada-Es Inc)
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as (b) any other sums which may become due under the performance, terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the indebtedness and other amounts owing Company under this the Note Purchase Agreement, (collectively, the "Obligations"all such obligations described in clauses (a), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(bb) and 506(b(c) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security other guarantor of the Notes or upon any other means of obtaining paymentaction, occurrence or circumstance whatsoever. Should In the event that the Company shall fail so to pay any of such Guaranteed Obligations when due, each Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the United States of America, pursuant to the requirements for payment specified in the Notes and the Note Purchase Agreement. Each default in the payment or performance of any of the Obligations, the obligations Guaranteed Obligations shall give rise to a separate cause of the Parent action hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder separate suits may be required by ▇▇▇▇▇▇ on any number brought hereunder as each cause of occasionsaction arises. All payments by Each Guarantor agrees that the Parent hereunder shall be made Notes issued in connection with the Note Purchase Agreement may (but need not) make reference to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etcthis Guaranty Agreement. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, Each Guarantor agrees to pay to Holder, on demand, all reasonable and documented costs and expenses (including court costs reasonable and reasonable legal expensesdocumented attorneys’ fees of one special counsel for the holders, including taken as a whole, and, if reasonably required by the allocated cost of staff counselRequired Holders, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialty, for the holders, taken as a whole) incurred or expended by Holder the Purchasers and each other holder of a Note in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, enforcing or defending (or determining whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted how to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(cenforce or defend) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencingthe Note Purchase Agreement, securing or otherwise executed in connection with any Obligation the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each Guarantor’s liability hereunder is joint and several with each other Guarantor and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) Notes and the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentPurchase Agreement.
Appears in 3 contracts
Sources: Note Purchase Agreement (STORE CAPITAL Corp), Subsidiary Guaranty Agreement (STORE CAPITAL Corp), Subsidiary Guaranty Agreement (STORE CAPITAL Corp)
Guaranty. The Guarantor hereby irrevocably and unconditionally guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise)) and (b) any expenses, as well as indemnities and other sums which may become due to the performance, of all holders or the Collateral Agent under the terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Note Agreement, including the Collateral Agreement or any other Note Document (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity guarantor of the Notes or other Person primarily Guaranteed Obligations or secondarily liable with respect upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting the generality Guarantor agrees to pay the same when due to the Collateral Agent and/or holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, pursuant to the requirements for payment specified in the Notes, the Parent agrees to Note Agreement, the provisions of any instrument evidencing, securing or otherwise executed Collateral Agreement and the other Note Documents. Each default in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Guaranteed Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications shall give rise to a separate cause of any action hereunder and separate suits may be brought hereunder as each cause of action arises. The Guarantor agrees that the terms or provisions of Notes issued pursuant to the Note Agreement may (but need not) make reference to this Note or Guaranty Agreement. The Guarantor hereby acknowledges and agrees that the Guarantor’s liability hereunder is joint and several with any other agreement evidencing, securing or otherwise executed in connection with any of Person(s) who may guarantee the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Guaranteed Obligations), all of which may be done without notice to the Parent.
Appears in 3 contracts
Sources: Guaranty Agreement (Global Water Resources, Inc.), Guaranty Agreement (Global Water Resources, Inc.), Guaranty Agreement (Global Water Resources, Inc.)
Guaranty. The Guarantor hereby irrevocably and unconditionally guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, interest and the Excess Leverage Fee, if any, on (including, without limitation, interest and the Excess Leverage Fee accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Note Agreement or any other instrument referred to therein, including (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity guarantor of the Notes or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting the generality Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment 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. The Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement. The Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by the Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Guaranty Agreement. The Guarantor hereby acknowledges and agrees that the Guarantor’s liability hereunder is joint and several with any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 2 contracts
Sources: Note Purchase Agreement (Caseys General Stores Inc), Note Purchase Agreement (Caseys General Stores Inc)
Guaranty. To induce the Guaranteed Party to enter into an Agreement and Plan of Merger, dated as of the date hereof (aas amended, amended and restated, supplemented or otherwise modified from time to time, the “Merger Agreement”; capitalized terms used but not defined herein shall have the meanings given to such terms in the Merger Agreement) Guaranty among Expedition Holding Company, Inc., a Delaware corporation (“Parent”), Expedition Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Payment Parent (“Merger Sub”), and Performance. The Parent the Guaranteed Party, pursuant to which Merger Sub will merge with and into the Guaranteed Party (the “Merger”), each Guarantor, intending to be legally bound, hereby absolutely, irrevocably and unconditionally, severally but not jointly, guarantees ----------------------------------- to Holder the full Guaranteed Party up to such Guarantor’s respective percentage as set forth opposite its name in Annex 1 (for each such Guarantor, its “Guaranteed Percentage”) the due and punctual payment when due performance and discharge of the obligation of Parent to pay to the Guaranteed Party the Parent Termination Fee and/or the Damages Remedy (whether at stated maturityfollowing, by required prewith respect to the Damages Remedy, a final, non-payment, by acceleration appealable order or otherwisesettlement), as well as the performancecase may be, of all of the indebtedness and/or any amounts under Section 5.5(b) and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(aSection 7.3(d) of the Federal Bankruptcy Code Merger Agreement, if, as and when such obligations become payable under the operation of Merger Agreement (S)(S)502(b) and 506(b) the “Guaranteed Obligations”). In no event shall a Guarantor’s liability in respect of the Federal Bankruptcy CodeGuaranteed Obligations exceed such Guarantor’s Guaranteed Percentage of the Guaranteed Obligations (such limitation on the liability each Guarantor may have for its Guaranteed Percentage of the Guaranteed Obligations being herein referred to as such Guarantor’s “Cap”), it being understood that this Limited Guaranty may not be enforced against any Guarantor without giving effect to such Guarantor’s Cap (and to the provisions of Sections 7 and 8 hereof). This guaranty is an absolute, unconditional and continuing guaranty Limited Guaranty may be enforced for the payment of money only. All payments hereunder shall be made in lawful money of the full United States, in immediately available funds. Each Guarantor promises and punctual payment undertakes to make all payments hereunder free and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance clear of any deduction, offset, defense, claim or counterclaim of any kind, except as expressly provided in this Limited Guaranty. Each Guarantor acknowledges that the ObligationsGuaranteed Party entered into the transactions contemplated by the Merger Agreement in reliance upon the execution of this Limited Guaranty. If Parent fails to discharge its Guaranteed Obligations when due, then each Guarantor’s liabilities to the obligations Guaranteed Party hereunder in respect of the Parent hereunder with respect to such Guaranteed Obligations in default shall, upon demand by Holderthe Guaranteed Party’s demand, become immediately due and payable (up to Holdereach Guarantor’s Cap), without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder Guaranteed Party may at any time and from the time when such amounts become due until payment, whether before or after judgmentto time, at the rate Guaranteed Party’s option, and so long as Parent has failed to discharge any of interest set forth its Guaranteed Obligations, take any and all actions available hereunder to collect any Guarantor’s liabilities hereunder in (S)1 hereofrespect of such Guaranteed Obligations, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced subject to such maximum permitted amountGuarantor’s Cap.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.
Appears in 2 contracts
Sources: Limited Guaranty, Limited Guaranty (Quest Software Inc)
Guaranty. (a) Guaranty of Payment Each Guarantor jointly and Performance. The Parent severally hereby unconditionally and irrevocably (i) guarantees ----------------------------------- to Holder the full and punctual prompt payment and performance when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all now existing and hereafter arising Obligations, and (ii) agrees to pay any and all costs, fees and expenses (including in-house and external attorneys’ fees and expenses (but, in the case of in-house counsels’ fees and expenses, without duplication of work performed by outside counsel)) reasonably incurred by Lender Parties in enforcing the indebtedness and other amounts owing under Guaranty set forth in this Note Article XIV (collectively, the "“Guaranteed Obligations"”), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty Guaranty is an absolute, unconditional and a continuing guaranty of the full and punctual payment and performance of all of the Obligations when due and not of their collectability only collection which shall not be discharged until all Guaranteed Obligations are indefeasibly paid in cash and performed in full and this Agreement is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Companyterminated.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor Each Guarantor jointly and not as a guarantor only, to pay to Holder, on demand, all reasonable costs severally hereby unconditionally and expenses irrevocably (including court costs and reasonable legal expenses, including the allocated cost of staff counseli) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- guarantees that the Guaranteed Obligations will be paid and performed strictly in accordance with their respective termsthe terms of the Loan Documents, regardless of any law, regulation or order Applicable Law now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder any Lender Party, and (ii) waives any rights and defenses it may now or hereafter have. The obligations of each Guarantor under this Article XIV are independent of the Guaranteed Obligations, and Agent may enforce the this Article XIV independently as to each Guarantor and/or each remedy, Collateral or other security Agent may at any time have, without first proceeding against or joining any other Person, Collateral or other security for the Guaranteed Obligations. 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 Credit Party or whether any other Credit Party is joined in any such action or actions. Lender Parties shall be under no obligation to marshal any assets in favor of any Guarantor or to proceed against or exhaust any Collateral before proceeding against any Guarantor. Each Guarantor agrees that it may be joined as a party defendant in any legal proceeding instituted by any Lender Party against any other Credit Party. The obligations of each Guarantor under this Article XIV shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any Credit Party to Lender Parties under any Loan Document but for, and shall be unaffected by, any of the following:
(i) lack of genuineness, validity, regularity or enforceability of any of the Obligations or Loan Document;
(ii) change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations, or any rescission, amendment or modification to, or waiver or compromise or acceleration of or any consent with respect to, any of the Guaranteed Obligations or any Loan Document or any other guaranty or the failure to obtain the consent or any Guarantor or other Person with respect thereto. The Parent waives promptness;
(iii) the existence, diligencevalue or condition of, presentmentor the failure by any Lender Party to perfect and maintain any Lien in, demandor to preserve any rights to, protestor the release or foreclosure of, notice any Collateral or other security for the Obligations;
(iv) the change, restructuring, dissolution or termination of acceptance, notice the structure or existence of any Obligations incurred and all other notices Credit Party or the insolvency or bankruptcy of any kind, all defenses which may be available Credit Party under any Debtor Relief Law;
(v) any action taken or omitted by virtue any Lender Party or any failure of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder Lender Party to assert any claim or demand or to enforce any right or remedy against the Company any Credit Party or any other entity guarantor; or
(vi) other action or circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by Lender Parties that might otherwise constitute a defense available to, or a legal or equitable discharge of, any co-obligor, Credit Party or any other Person primarily guarantor or secondarily liable surety (other than actual indefeasible payment of the Obligations in full in cash).
(c) Each Guarantor acknowledges and agrees that (i) it will receive substantial direct and indirect benefits from the financing arrangements contemplated in this Agreement which would not have been available to the Credit Parties except upon the joint and several basis set forth herein and with the Guaranty provided in this Article XIV, and (ii) Lender Parties have made no representation or warranty with respect to any of the Obligations; (ii) any extensionsvalidity, compromisegenuineness, refinancingregularity, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment enforceability of any of the Loan Documents, and have no duty or responsibility whatsoever to any Guarantor in respect to the management and maintenance of the Guaranteed Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentCollateral.
Appears in 2 contracts
Sources: Credit Agreement (Fibernet Telecom Group Inc\), Credit Agreement (Fibernet Telecom Group Inc\)
Guaranty. The Guarantor hereby unconditionally and irrevocably guarantees to the Administrative Agent, each Lender, each Swing Line Lender, each L/C Issuer and each other Person from time to time holding or owed payment with respect to the Guaranteed Obligations (acollectively, the “Guarantee Beneficiaries”) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual prompt payment when due (due, whether at stated maturity, by required pre-paymentprepayment, by acceleration upon acceleration, demand or otherwise), as well as the performanceand at all times thereafter, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Guaranteed Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations terms contained in the Loan Documents. This Guaranty is a guaranty of payment and not of their collectability only performance and is in no way conditioned upon any requirement that Holder first attempt to collect any not merely a guaranty of the Obligations from the Company or resort to any collateral security or other means of obtaining paymentcollection. Should the Company default in the payment or performance of any of the ObligationsAs used herein, the obligations of the Parent hereunder with respect to such term “Guaranteed Obligations” means any and all existing and future Obligations in default shall, upon demand by Holder, become immediately due and which may be payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made Borrowers to the HolderGuarantee Beneficiaries under the Credit Agreement and any other Loan Document (and, in the manner each case, including all renewals, extensions, amendments, refinancings and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costsother modifications thereof and all costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs attorneys’ fees and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder any Guarantee Beneficiary in connection with the Obligationscollection or enforcement thereof (in each case, this guaranty and to the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted extent required to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generallyCredit Agreement)). Without limiting the generality of the foregoing, the Parent agrees to Guaranteed Obligations shall include any such indebtedness, obligations, and liabilities which may be or hereafter become unenforceable or shall be an allowed or disallowed claim under any proceeding or case commenced by or against the provisions Guarantor, any Borrower or any other guarantor of the Guaranteed Obligations under any Debtor Relief Law, and shall include interest that accrues after the commencement by or against any Borrower of any instrument evidencing, securing or otherwise executed in connection with proceeding under any Obligation and agrees that Debtor Relief Laws. Without limiting the obligations generality of the Parent hereunder foregoing unconditional guarantee, for the avoidance of doubt, this Guaranty shall not in no manner be released or dischargedreleased, in whole or in part, discharged or otherwise affected or limited by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (iia) any extensionswaiver, compromisemodification or amendment of, refinancingor supplement to, consolidation or renewals of any Obligation; documentation governing the Guarantee Obligations, including the Credit Agreement and the other Loan Documents, (iiib) any change in the timecorporate existence, place structure or manner ownership of payment (x) any Borrower or any guarantor of the Guaranteed Obligations or (y) any Guarantee Beneficiary, (c) the existence of any of the Obligations or any rescissionsclaim, waivers, compromise, refinancing, consolidation set-off or other amendments or modifications of rights which the Guarantor may have at any of the terms or provisions of this Note time against any Borrower, any Guarantee Beneficiary or any other agreement evidencingentity, securing or otherwise executed whether in connection with the Loan Documents or with unrelated transactions; provided, that this clause (c) shall not prevent the assertion of such claim by separate suit or in a compulsory counterclaim, (d) any invalidity or unenforceability relating to or against any Borrower for any reason relating to the Loan Documents or any other provision of applicable law or regulation purporting to prohibit the Obligations made in accordance with the terms hereof; (iv) the addition, substitution payment by any Borrower or release any other guarantor of any entity or other person primarily or secondarily liable for any Obligation; Guaranteed Obligations or (ve) any other act or omission which might in to act or delay of any manner kind by any Borrower, any Guarantee Beneficiary or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentperson.
Appears in 2 contracts
Sources: Credit Agreement (Celanese Corp), Credit Agreement (Celanese Corp)
Guaranty. (a) Guaranty of Payment The Guarantor hereby absolutely, unconditionally and Performance. The Parent hereby irrevocably guarantees ----------------------------------- to Holder the full and punctual prompt payment when due (due, whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performanceand at all times thereafter, of all principal, interest, fees and all other monetary obligations of the indebtedness and other amounts owing under this Note Trust owed to each of the Subordinate Certificate Holders relating to the Certificados Subordinados, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due, which arise out of or in connection with the Trust Agreement (collectively, the "Obligations"), including all such Obligations which would become due but for obligations being herein collectively called the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code“Guaranteed Obligations”). This Guaranty constitutes a guaranty is an absolute, unconditional and continuing guaranty by the Guarantor of the full and punctual payment and performance of all of the Obligations when due and not of their collectability only collection, and is in no way conditioned upon the Guarantor specifically agrees that it shall not be necessary or required that the Trustee or any requirement that Subordinate Certificate Holder first attempt or any other Person exercise any right, assert any claim or demand or enforce any remedy whatsoever against the Trustee (or any other Person) before or as a condition to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by Guarantor hereunder. In the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided event that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the ObligationsGuaranteed Obligations shall not be paid when due within any period provided for in the Certificados Subordinados, and all suretyship defenses generallythe Guarantor agrees to pay such Guaranteed Obligations to the corresponding Subordinate Certificate Holder within 30 (thirty) calendar days after delivery of a written demand by any such Subordinate Certificate Holder to the Guarantor. Without limiting the generality of the foregoing, upon any default on the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations Guaranteed Obligations, the Subordinate Certificate Holders may demand payment directly to the Guarantor, either prior to or concurrently with any rescissionsrequirement or lawsuit against, waiversor without bringing requirement or suit against, compromise, refinancing, consolidation the Trust.
(b) Any term or other amendments or modifications of any of the terms or provisions provision of this Note Guaranty or any other agreement evidencing, securing or otherwise transaction document executed in connection with any the Trust Agreement to the contrary notwithstanding, the aggregate maximum amount of the Guaranteed Obligations made for which the Guarantor shall be liable shall not exceed the maximum amount for which the Guarantor can be liable without rendering this Guaranty or any other transaction document executed in accordance connection with the terms hereof; Trust Agreement as it relates to the Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer.
(ivc) Any term or provision of this Guaranty or the additionTrust Agreement or any other transaction document executed in connection therewith to the contrary notwithstanding, substitution or release the aggregate maximum amount of any entity or other person primarily or secondarily the Guaranteed Obligations for which the Guarantor shall be liable for any Obligation; or with respect to the principal amount of the Certifcados Subordinados shall not exceed (vx) USD$19,000,000 (nineteen million Dollars) minus (y) any other act principal amounts of the Certificados Subordinados indefeasibly paid in cash to the extent the Certifcados Subordinados have been permanently reduced with respect to such payment, or omission which might such higher amount as the Guarantor shall have agreed to in any manner writing, provided, that the foregoing shall only limit Guarantor’s obligations for principal of the Certifcados Subordinados but shall not limit or impair the Guarantor’s obligation with respect to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentGuaranteed Obligation.
Appears in 2 contracts
Sources: Guaranty (Vitro Sa De Cv), Guaranty (Vitro Sa De Cv)
Guaranty. The Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as (b) any other sums which may become due under the performance, terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the indebtedness and other amounts owing Company under this the Note Purchase Agreement (collectively, the "Obligations"all such obligations described in clauses (a), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(bb) and 506(b(c) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security other guarantor of the Notes or upon any other means of obtaining paymentaction, occurrence or circumstance whatsoever. Should In the event that the Company shall fail so to pay any of such Guaranteed Obligations when due, the Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the United States of America, pursuant to the requirements for payment specified in the Notes and the Note Purchase Agreement. Each default in the payment or performance of any of the Obligations, the obligations Guaranteed Obligations shall give rise to a separate cause of the Parent action hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder separate suits may be required by ▇▇▇▇▇▇ on any number brought hereunder as each cause of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etcaction arises. The Parent ------------------------------------------------ further agrees, as Guarantor agrees that the principal obligor and not as a guarantor only, Notes issued in connection with the Note Purchase Agreement may (but need not) make reference to this Guaranty Agreement. The Guarantor agrees to pay to Holder, on demand, all reasonable and documented costs and expenses (including court costs reasonable and reasonable legal expensesdocumented attorneys’ fees of one special counsel for the holders, including taken as a whole, and, if reasonably required by the allocated cost of staff counselRequired Holders, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialty, for the holders, taken as a whole) incurred or expended by Holder the holders of the Notes in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, enforcing or defending (or determining whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted how to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(cenforce or defend) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencingthe Note Purchase Agreement, securing or otherwise executed in connection with any Obligation the Notes and this Guaranty Agreement. The Guarantor hereby acknowledges and agrees that the Guarantor’s liability hereunder is joint and several with any other Person(s) who may guarantee the obligations and Debt under and in respect of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) Notes and the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentPurchase Agreement.
Appears in 2 contracts
Sources: Note Purchase Agreement (Kilroy Realty, L.P.), General Partner Guaranty Agreement (Kilroy Realty, L.P.)
Guaranty. (a) Guaranty The Company hereby unconditionally and irrevocably guarantees to the Administrative Agent, for the ratable benefit of Payment the Lenders and Performance. The Parent hereby guarantees ----------------------------------- to Holder their respective successors, indorsees, transferees and assigns, any Hedge Bank and any Cash Management Bank, the full prompt and punctual complete payment and performance when due (whether at the stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Guaranteed Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement The Company agrees that the Guaranteed Obligations may at any time and from time to Pay Enforcement Coststime exceed the amount of the liability of the Company hereunder that would exist in the absence of this Article 10 without impairing this Guarantee or affecting the rights and remedies of the Administrative Agent, etc. The Parent ------------------------------------------------ further agreesany Lender, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred any Hedge Bank or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountany Cash Management Bank hereunder.
(c) Waivers This Guarantee shall remain in full force and effect until all the Guaranteed Obligations (other than Guaranteed Obligations in respect of Hedge Agreements and Cash Management Obligations) shall have been satisfied by payment in full in immediately available funds, the Commitments have been terminated and either no Letter of Credit shall be outstanding or each outstanding Letter of Credit has been cash collateralized so that it is fully secured to the reasonable satisfaction of the Administrative Agent, notwithstanding that from time to time during the term of this Guarantee the European Borrower may be free from any Guaranteed Obligations.
(d) No payment made by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that Company, any other guarantor or any other Person or received or collected by the Obligations will be paid and performed strictly in accordance with their respective termsAdministrative Agent, regardless of any lawLender, regulation any Hedge Bank or order now any Cash Management Bank from the Company, any guarantor or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available Person by virtue of any valuationaction or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Guaranteed Obligations shall be deemed to modify, stayreduce, moratorium law release or other similar law now or hereafter in effect, any right to require otherwise affect the marshalling of assets liability of the Company or hereunder which shall, notwithstanding any such payment (other entity or other Person primarily or secondarily liable with than any payment made by the Company in respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Guaranteed Obligations or any rescissions, waivers, compromise, refinancing, consolidation payment received or other amendments or modifications of any collected from the Company in respect of the terms or provisions of this Note or any other agreement evidencingGuaranteed Obligations), securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily remain liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of Guaranteed Obligations until the Parent or otherwise operate as a release or discharge of the Parent Guaranteed Obligations (other than the indefeasible Guaranteed Obligations in respect of Hedge Agreements and Cash Management Obligations) shall have been satisfied by payment in fullfull in immediately available funds, in cash, the Commitments have been terminated and either no Letter of all Credit shall be outstanding or each outstanding Letter of Credit has been cash collateralized so that it is fully secured to the reasonable satisfaction of the Obligations), all of which may be done without notice to the ParentAdministrative Agent.
Appears in 2 contracts
Sources: Restatement Agreement (Constellation Brands, Inc.), Restatement Agreement (Constellation Brands, Inc.)
Guaranty. (a) Guaranty of Payment and Performance. The Parent Pubco hereby guarantees ----------------------------------- to Holder Investor, subject to the full provisions hereof, that the aggregate Net Proceeds received by Investor from all sales of Investor’s Backstop Shares and punctual payment when due Additional Shares (whether at stated maturity, including repurchases by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay Pubco pursuant to the last sentence of Section 6) shall be not less than one hundred and ten percent (S)362(a110%) of Investor’s Aggregate Purchase Price (the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company“Guaranteed Amount”).
(b) Parent's In the event that the Net Proceeds received by Investor as of the second Business Day after the end of the Resale Period shall be less than Investor’s Guaranteed Amount (the “Shortfall”), Pubco and Investor shall, on the second Business Day after the end of the Resale Period instruct the Escrow Agent in accordance with the Escrow Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, pay (i) to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection Investor’s brokerage account with the ObligationsBroker (the “Broker Account”), this guaranty the aggregate amount of the Shortfall and (ii) to Pubco the enforcement thereof, together with interest on amounts recoverable hereunder from remaining balance of the time when such amounts become due until payment, whether before or after judgment, at funds in the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountEscrow Account.
(c) Waivers by Notwithstanding anything to the Parent; ▇▇▇▇▇▇'s Freedom contrary contained herein, Pubco’s obligations under this Section 7 shall be limited to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly funds held in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable Escrow Account with respect to any the Escrow Amount (including earnings thereon, if any) (the “Escrow Funds”), and if the Shortfall is in excess of the ObligationsEscrow Funds, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder Pubco shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder required to assert make any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable payment with respect to any such excess Shortfall. Upon making such payment from the Escrow Account to the Broker Account, the balance of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of Escrow Funds shall be delivered to Pubco. Upon making such payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentBroker Account, Pubco shall have no continuing obligations under this Section 7, and Investor’s sole recourse should it not receive the Shortfall shall be to seek payment from the Broker, and Investor shall have in no circumstance have recourse against Pubco or its officers or directors.
Appears in 2 contracts
Sources: Backstop Agreement (Reebonz Holding LTD), Backstop Agreement (Draper Oakwood Technology Acquisition Inc.)
Guaranty. (a) Guaranty Each Borrower hereby unconditionally and irrevocably, jointly and severally guarantees to Administrative Agent, Lenders, and each other holder of Payment the Obligations, as primary obligor and Performance. The Parent hereby guarantees ----------------------------------- to Holder not as surety:
(i) the full due and punctual payment in full (and not merely the collectibility) by each Borrower of the Obligations, including unpaid and accrued interest thereon, in each case when due and payable, all according to the terms of this Agreement, the Notes and the other Loan Documents;
(whether ii) the due and punctual payment in full (and not merely the collectibility) by each of Borrower of all other sums and charges which may at stated maturityany time be due and payable in accordance with this Agreement, the Notes or any of the other Loan Documents;
(iii) the due and punctual performance by required pre-payment, by acceleration or otherwise), as well as the performance, each Borrower of all of the indebtedness other terms, covenants and conditions contained in the Loan Documents; and
(iv) all the other amounts owing under this Note (collectively, Obligations of each Borrower. Notwithstanding any provision to the "Obligations"), including all such Obligations which would become due but for the operation contrary contained herein or in any other of the automatic stay pursuant Loan Documents or the other documents relating to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of each Borrower solely in its capacity as a guarantor (and not in its capacity as a Borrower hereunder) under this Agreement and the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder other Loan Documents shall be made not exceed an aggregate amount equal to the Holder, in the manner and at the place of payment specified therefor for payments hereunder largest amount that would not render such obligations subject to be made by the Companyavoidance under applicable Debtor Relief Laws.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor obligations and not liabilities of each Borrower as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, under this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest Section shall be reduced to such maximum permitted amount.
(c) Waivers by absolute and unconditional and joint and several, irrespective of the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective termsgenuineness, regardless validity, priority, regularity or enforceability of any lawthis Agreement, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms the Notes or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company Loan Documents or any other entity circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Borrower solely in its capacity as a guarantor (and not in its capacity as a Borrower hereunder) expressly agrees that Administrative Agent and Lenders may, in their sole and absolute discretion, without notice to or further assent of such Borrower and without in any way releasing, affecting or in any way impairing the joint and several obligations and liabilities of such Borrower as a guarantor hereunder:
(i) waive compliance with, or any defaults under, or grant any other Person primarily indulgences under or secondarily liable with respect to any of the Loan Documents;
(ii) modify, amend, change or terminate any provisions of any of the Loan Documents;
(iii) grant extensions or renewals of or with respect to the Commitments, the Notes or any of the other Loan Documents;
(iv) effect any release, subordination, compromise or settlement in connection with this Agreement, any of the Notes or any of the other Loan Documents;
(v) agree to the substitution, exchange, release or other disposition of the Collateral or any part thereof, or any other collateral for the Commitments or to the subordination of any lien or security interest therein;
(vi) make advances for the purpose of performing any term, provision or covenant contained in this Agreement, any of the Notes or any of the other Loan Documents with respect to which any Borrower shall then be in default;
(vii) make future advances pursuant to this Agreement or any of the other Loan Documents;
(viii) assign, pledge, hypothecate or otherwise transfer the Commitments, the Obligations, the Notes, any of the other Loan Documents or any interest therein, all as and to the extent permitted by the provisions of this Agreement;
(ix) deal in all suretyship defenses generallyrespects with Borrower as if this Section were not in effect;
(x) effect any release, compromise or settlement with any of Borrower, whether in their capacity as a Borrower or as a guarantor under this Section, or any other guarantor; and
(xi) provide debtor-in-possession financing or allow use of cash collateral in proceedings under the Bankruptcy Code, it being expressly agreed by each Borrower that any such financing and/or use would be part of the Obligations.
(c) The obligations and liabilities of each Borrower, as guarantor under this Section, shall be primary, direct and immediate, shall not be subject to any counterclaim, recoupment, set off, reduction or defense based upon any claim that a Borrower may have against any one or more of the other Borrower, Administrative Agent, any one or more of Lenders and/or any other guarantor and shall not be conditional or contingent upon pursuit or enforcement by Administrative Agent or other Lenders of any remedies it may have against Borrower with respect to this Agreement, the Notes or any of the other Loan Documents, whether pursuant to the terms thereof or by operation of law. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation Administrative Agent and agrees that the obligations of the Parent hereunder Lenders shall not be released required to make any demand upon any of Borrower, or dischargedto sell the Collateral or otherwise pursue, enforce or exhaust its or their remedies against Borrower or the Collateral either before, concurrently with or after pursuing or enforcing its rights and remedies hereunder. Any one or more successive or concurrent actions or proceedings may be brought against each Borrower under this Section, either in whole the same action, if any, brought against any one or more of Borrower or in partseparate actions or proceedings, as often as Administrative Agent may deem expedient or otherwise affected by (i) advisable. Without limiting the failure of Holder to assert foregoing, it is specifically understood that any claim modification, limitation or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment discharge of any of the Obligations liabilities or obligations of any one or more of Borrower, any other guarantor or any rescissionsobligor under any of the Loan Documents, waiversarising out of, compromiseor by virtue of, refinancingany bankruptcy, consolidation arrangement, reorganization or similar proceeding for relief of debtors under federal or state law initiated by or against any one or more of Borrower, in their respective capacities as borrowers and guarantors under this Section, or under any of the Loan Documents shall not modify, limit, lessen, reduce, impair, discharge, or otherwise affect the liability of each Borrower under this Section in any manner whatsoever, and this Section shall remain and continue in full force and effect. It is the intent and purpose of this Section that each Borrower shall and does hereby waive all rights and benefits which might accrue to any other amendments guarantor by reason of any such proceeding, and each Borrower agrees that it shall be liable for the full amount of the obligations and liabilities under this Section, regardless of, and irrespective to, any modification, limitation or modifications discharge of the liability of any one or more of Borrower, any other guarantor or any obligor under any of the Loan Documents, that may result from any such proceedings.
(d) Each Borrower, solely as guarantor under this Section (and not in its capacity as a Borrower hereunder), hereby unconditionally, jointly and severally, irrevocably and expressly waives:
(i) presentment and demand for payment of the Obligations and protest of non-payment;
(ii) notice of acceptance of this Section and of presentment, demand and protest thereof;
(iii) notice of any default hereunder or under the Notes or any of the other Loan Documents and notice of all indulgences;
(iv) notice of any increase in the amount of any portion of or all of the indebtedness guaranteed by this Section;
(v) demand for observance, performance or enforcement of any of the terms or provisions of this Note Section, the Notes or any of the other agreement evidencing, securing or otherwise executed Loan Documents;
(vi) all errors and omissions in connection with Administrative Agent’s administration of all indebtedness guaranteed by this Section, except errors and omissions resulting from acts of bad faith;
(vii) any right or claim of right to cause a marshalling of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release assets of any entity one or more of the other person primarily or secondarily liable for any Obligation; or Borrower;
(vviii) any other act or omission of Administrative Agent or Lenders which might in any manner or to any extent vary changes the scope of the risk as guarantor hereunder; and
(ix) all other notices and demands otherwise required by law which Borrower may lawfully waive. Within ten (10) days following any request of the Parent Administrative Agent so to do, each Borrower will furnish Administrative Agent and Lenders and such other persons as Administrative Agent may direct with a written certificate, duly acknowledged stating in detail whether or otherwise operate as a release not any credits, offsets or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice defenses exist with respect to the Parentthis Section.
Appears in 2 contracts
Sources: Credit Agreement (Micros Systems Inc), Credit Agreement (Micros Systems Inc)
Guaranty. (a) Guaranty of Payment Each Borrower hereby unconditionally and Performance. The Parent hereby irrevocably, guarantees ----------------------------------- to Holder the full Lender:
(i) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of the Obligations, including unpaid and accrued interest thereon, in each case when due and payable, all according to the terms of this Agreement, the Notes and the other Financing Documents;
(whether ii) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of all other sums and charges which may at stated maturityany time be due and payable in accordance with this Agreement, the Notes or any of the other Financing Documents;
(iii) the due and punctual performance by required pre-payment, by acceleration or otherwise), as well as the performance, other Borrowers of all of the indebtedness other terms, covenants and conditions contained in the Financing Documents; and
(iv) all the other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the CompanyBorrowers.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor obligations and not liabilities of each Borrower as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, under this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest Section 2.3.8 shall be reduced to such maximum permitted amount.
(c) Waivers by absolute and unconditional and joint and several, irrespective of the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective termsgenuineness, regardless validity, priority, regularity or enforceability of any lawthis Agreement, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms the Notes or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company Financing Documents or any other entity circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Borrower in its capacity as a guarantor expressly agrees that the Lender may, in its sole and absolute discretion, without notice to or further assent of such Borrower and without in any way releasing, affecting or in any way impairing the joint and several obligations and liabilities of such Borrower as a guarantor hereunder:
(i) waive compliance with, or any defaults under, or grant any other Person primarily indulgences under or secondarily liable with respect to any of the Financing Documents;
(ii) modify, amend, change or terminate any provisions of any of the Financing Documents;
(iii) grant extensions or renewals of or with respect to the Credit Facilities, the Notes or any of the other Financing Documents;
(iv) effect any release, subordination, compromise or settlement in connection with this Agreement, any of the Notes or any of the other Financing Documents;
(v) agree to the substitution, exchange, release or other disposition of the Collateral or any part thereof, or any other collateral for the Loan or to the subordination of any lien or security interest therein;
(vi) make advances for the purpose of performing any term, provision or covenant contained in this Agreement, any of the Notes or any of the other Financing Documents with respect to which the Borrowers shall then be in default;
(vii) make future advances pursuant to this Agreement or any of the other Financing Documents;
(viii) assign, pledge, hypothecate or otherwise transfer the Commitments, the Obligations, the Notes, any of the other Financing Documents or any interest therein, all as and to the extent permitted by the provisions of this Agreement;
(ix) deal in all suretyship defenses generallyrespects with the other Borrowers as if this Section 2.3.8 were not in effect;
(x) effect any release, compromise or settlement with any of the other Borrowers, whether in their capacity as a Borrower or as a guarantor under this Section 2.3.8, or any other guarantor; and
(xi) provide debtor-in-possession financing or allow use of cash collateral in proceedings under the Bankruptcy Code, it being expressly agreed by all Borrowers that any such financing and/or use would be part of the Obligations.
(c) The obligations and liabilities of each Borrower, as guarantor under this Section 2.3.8, shall be primary, direct and immediate, shall not be subject to any counterclaim, recoupment, set off, reduction or defense based upon any claim that a Borrower may have against any one or more of the other Borrowers, the Lender, and/or any other guarantor and shall not be conditional or contingent upon pursuit or enforcement by the Lender of any remedies it may have against the Borrowers with respect to this Agreement, the Notes or any of the other Financing Documents, whether pursuant to the terms thereof or by operation of law. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder Lender shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder required to assert make any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to upon any of the Obligations; (ii) any extensionsBorrowers, compromiseor to sell the Collateral or otherwise pursue, refinancingenforce or exhaust its remedies against the Borrowers or the Collateral either before, consolidation concurrently with or renewals of any Obligation; (iii) any change after pursuing or enforcing its rights and remedies hereunder. Any one or more successive or concurrent actions or proceedings may be brought against each Borrower under this Section 2.3.8, either in the timesame action, place if any, brought against any one or manner more of payment the Borrowers or in separate actions or proceedings, as often as the Lender may deem expedient or advisable. Without limiting the foregoing, it is specifically understood that any modification, limitation or discharge of any of the Obligations liabilities or obligations of any one or more of the Borrowers, any other guarantor or any rescissionsobligor under any of the Financing Documents, waiversarising out of, compromiseor by virtue of, refinancingany bankruptcy, consolidation arrangement, reorganization or similar proceeding for relief of debtors under federal or state law initiated by or against any one or more of the Borrowers, in their respective capacities as borrowers and guarantors under this Section 2.3.8, or under any of the Financing Documents shall not modify, limit, lessen, reduce, impair, discharge, or otherwise affect the liability of each Borrower under this Section 2.3.8 in any manner whatsoever, and this Section 2.3.8 shall remain and continue in full force and effect. It is the intent and purpose of this Section 2.3.8 that each Borrower shall and does hereby waive all rights and benefits which might accrue to any other amendments guarantor by reason of any such proceeding, and the Borrowers agree that they shall be liable for the full amount of the obligations and liabilities under this Section 2.3.8, regardless of, and irrespective to, any modification, limitation or modifications discharge of the liability of any one or more of the Borrowers, any other guarantor or any obligor under any of the Financing Documents, that may result from any such proceedings.
(d) Each Borrower, as guarantor under this Section 2.3.8, hereby unconditionally, jointly and severally, irrevocably and expressly waives:
(i) presentment and demand for payment of the Obligations and protest of non-payment;
(ii) notice of acceptance of this Section 2.3.8 and of presentment, demand and protest thereof;
(iii) notice of any default hereunder or under the Notes or any of the other Financing Documents and notice of all indulgences;
(iv) notice of any increase in the amount of any portion of or all of the indebtedness guaranteed by this Section 2.3.8;
(v) demand for observance, performance or enforcement of any of the terms or provisions of this Note Section 2.3.8, the Notes or any of the other agreement evidencing, securing or otherwise executed Financing Documents;
(vi) all errors and omissions in connection with the Lender's administration of all indebtedness guaranteed by this Section 2.3.8, except errors and omissions resulting from the Lender's gross negligence or willful misconduct;
(vii) any right or claim of right to cause a marshalling of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release assets of any entity one or more of the other person primarily or secondarily liable for any Obligation; or Borrowers;
(vviii) any other act or omission of the Lender which might in any manner or to any extent vary changes the scope of the risk as guarantor hereunder; and
(ix) all other notices and demands otherwise required by law which the Borrower may lawfully waive. Within ten (10) days following any request of the Parent Lender so to do, each Borrower will furnish the Lender and such other persons as the Lender may direct with a written certificate, duly acknowledged stating in detail whether or otherwise operate as a release not any credits, offsets or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice defenses exist with respect to the Parentthis Section 2.3.8.
Appears in 2 contracts
Sources: Financing Agreement (Argan Inc), Financing and Security Agreement (Argan Inc)
Guaranty. (a) Guaranty Guarantor, upon the occurrence of Payment a Springing Recourse Event, hereby absolutely, irrevocably and Performance. The Parent hereby guarantees ----------------------------------- to Holder unconditionally guaranties the full due and punctual payment and performance when due (due, whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the following (collectively referred to as the “Guarantied Obligations”): (a) all indebtedness and obligations owing by the Borrower to any Lender, the Swingline Lender, the Issuing Lender or the Agent under or in connection with the Credit Agreement and any other Loan Document, including without limitation, the repayment of all principal of the Revolving Loans, Term Loans A, Term Loans B, Swingline Loans and the Reimbursement Obligations, and the payment of all interest, Fees, charges, attorneys’ fees and other amounts owing under this Note payable to any Lender or the Agent thereunder or in connection therewith; (collectivelyb) any and all extensions, the "Obligations")renewals, including all such Obligations which would become due but for the operation modifications, amendments or substitutions of the automatic stay pursuant to foregoing; (S)362(ac) of all expenses, including, without limitation, reasonable attorneys’ fees and disbursements, that are incurred by the Federal Bankruptcy Code Lenders and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default Agent in the payment or performance enforcement of any of the foregoing or any obligation of Guarantor hereunder; and (d) all other Obligations. For the purposes of this Guaranty, the obligations occurrence of any of the Parent hereunder events described in (1)-(3) below shall be a “Springing Recourse Event”:
(A) Guarantor fails to perform or comply with respect to any of the following terms (each, a “Guarantor Covenant Breach”):
(i) the Guarantor shall not, directly or indirectly, enter into or conduct any business other than in connection with the ownership, acquisition and disposition of general or limited partnership interests in the Borrower and the management of the business of the Borrower, and such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any natureactivities as are incidental thereto, all of which are expressly waived shall be solely in furtherance of the business of the Borrower;
(ii) the Guarantor shall not own any assets other than (A) equity interests (or rights, options or warrants in respect thereof) of the Borrower, (B) up to a one percent (1%) equity interest in any partnership or limited liability company at least ninety-nine percent (99%) of the equity of which is owned, directly or indirectly, by the ParentBorrower; (C) money that has been distributed to Guarantor by Borrower or a Subsidiary of Borrower described in clause (ii)(B) above in accordance with Section 10.2. Payments of the Credit Agreement that is held for ten (10) Business Days or less pending further distribution to equity holders of the Guarantor, (D) assets received by the Parent hereunder may Guarantor from third parties (including, without limitation, the proceeds from any Equity Issuance), that are held for ten (10) Business Days or less pending further contribution to Borrower, (E) such bank accounts or similar instruments (subject to the other terms hereof) as it deems necessary to carry out its responsibilities under the limited partnership agreement of the Borrower, and (F) other tangible and intangible assets that, taken as a whole, are de minimis in relation to the net assets of Borrower and its Subsidiaries (but which in no event shall include any real estate, cash, cash equivalents or other liquid assets in excess of $500,000 in the aggregate (except as permitted in clauses (ii)(C) and (D) above) or equity interests (other than equity interests permitted in clauses (ii)(A) and (B) above);
(iii) the Guarantor shall promptly contribute or otherwise downstream to the Borrower any net assets received by the Guarantor from third parties (including, without limitation, the proceeds from any Equity Issuance), subject to the terms of clause (ii)(D) above;
(iv) the Guarantor shall not merge or consolidate (except as permitted in the Credit Agreement), or dissolve, liquidate or otherwise wind up its business, affairs or assets;
(v) the Guarantor shall not guarantee, or otherwise be required by ▇or become obligated in respect of, any Indebtedness (which for the purposes hereof shall include any obligations under any Derivatives Contract but shall exclude (A) guarantees of obligations under any Derivatives Contracts in favor of Associated Bank National Association and any lender under the Prior Term Loan Agreement or Prior Existing Credit Agreement in place as of ▇▇▇▇▇ on ▇▇, ▇▇▇▇, (▇) any number Indebtedness described in clause (f) of occasions. All payments by the Parent hereunder definition of Indebtedness, (C) any liability pursuant to a Customary Nonrecourse Debt Guaranty until a claim is made with respect thereto (provided that for the purposes of this clause (v), the Guarantor shall not be made deemed to the Holder, have violated this covenant with respect to Indebtedness under a Customary Nonrecourse Debt Guaranty until a judgment is obtained with respect to claims under Customary Nonrecourse Debt Guaranties individually or in the manner aggregate of $30,000,000 or greater), and at (D) any liability pursuant to a springing guaranty on substantially the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, same terms as the principal obligor Springing Guaranty; and provided further that the Guarantor’s liability with respect to (x) Indebtedness of Borrower in place as of March 31, 2014 and (y) Indebtedness of Inland Diversified assumed by Borrower and that is existing debt of Inland Diversified as of July 1, 2014 and was not incurred as a part of or in anticipation of the merger of Inland Diversified with and into KRG Magellan, solely by virtue of the Guarantor being the general partner of Borrower and not as a guarantor onlyguarantor, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder shall be excluded from the time when foregoing provided such amounts become due until payment, whether before or after judgment, at the rate liability is not increased; and
(B) with respect to a Guarantor Covenant Breach of interest set forth any event described in (S)1 hereof1)(A)(i)-(iii) above, provided that if the passage of forty-five (45) days after the first to occur of either (i) Borrower or Guarantor becoming aware of such interest exceeds the maximum amount permitted to be paid --------- under applicable lawGuarantor Covenant Breach, then or (ii) Agent notifying Borrower in writing of any such interest shall be reduced to such maximum permitted amount.Guarantor Covenant Breach, or
(cC) Waivers by with respect to a Guarantor Covenant Breach of the Parent; ▇▇▇▇▇▇'s Freedom event described in clause (1)(A)(v) above, the passage of ten (10) Business Days (or forty-five (45) days if the aggregate Indebtedness for the purposes of clause (1)(A)(v) above is less than $10,000,000), after the first to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly occur of either (i) Borrower or Guarantor becoming aware of such Guarantor Covenant Breach, or (ii) Agent notifying Borrower in accordance with their respective terms, regardless writing of any lawsuch Guarantor Covenant Breach; or
(2) Borrower or Guarantor shall commence a voluntary case under the Bankruptcy Code of 1978, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptnessas amended, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity federal bankruptcy or any other Person primarily domestic or secondarily liable foreign laws relating to bankruptcy, insolvency, reorganization, winding-up, composition or adjustment of debts, in each case with respect to Borrower or Guarantor, whether now or hereinafter in effect (collectively, a “Bankruptcy Proceeding”); or
(3) Borrower or Guarantor or any of the Obligationsofficer or director thereof shall collude with, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed assist any party in connection with any Obligation such filing in a Bankruptcy Proceeding or solicit or cause to be solicited petitioning creditors for any involuntary petition against Borrower or Guarantor in any such Bankruptcy Proceeding from any party. Guarantor acknowledges and agrees that the obligations guaranty under this Guaranty of the Parent hereunder Guarantied Obligations shall not be released or discharged, in whole or in part, or otherwise affected by (i) automatically become fully effective upon the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals occurrence of any Obligation; (iii) any change in Springing Recourse Event and no other documentation or notice shall be required to evidence the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentsame.
Appears in 2 contracts
Sources: Credit Agreement (Kite Realty Group, L.P.), Springing Guaranty (Kite Realty Group, L.P.)
Guaranty. Each Subsidiary Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Subsidiary Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations"), including Note Agreement or any other instrument referred to therein (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity guarantor of the Notes (including, without limitation, any other Subsidiary Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Subsidiary Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment 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 Subsidiary Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Subsidiary Guaranty Agreement. Each Subsidiary Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Subsidiary Guarantor, by any other Subsidiary Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Subsidiary Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Subsidiary Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Subsidiary Guaranty Agreement. Each Subsidiary Guarantor hereby acknowledges and agrees that such Subsidiary Guarantor’s liability hereunder is joint and several with the other Subsidiary Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note Agreement. Notwithstanding the foregoing provisions or any other agreement evidencingprovision of this Subsidiary Guaranty Agreement, securing or otherwise executed in connection each Subsidiary Guarantor hereby agrees that if at any time the Guaranteed Obligations exceed the Maximum Guaranteed Amount determined as of such time with any of regard to such Subsidiary Guarantor, then this Subsidiary Guaranty Agreement shall be automatically amended to reduce the Guaranteed Obligations made in accordance with to the terms hereof; (iv) Maximum Guaranteed Amount. Such amendment shall not require the addition, substitution or release written consent of any entity Subsidiary Guarantor or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or holder and shall be deemed to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice have been automatically consented to the Parent.by each Subsidiary Guarantor and each
Appears in 2 contracts
Sources: Subsidiary Guaranty Agreement, Subsidiary Guaranty Agreement (Littelfuse Inc /De)
Guaranty. In order to induce Lender to make the loan evidenced by this note, and as part of the consideration for making such loan, Guarantor does hereby pledge to Lender a first lien security interest on all of her personal properties and assets (a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- “Collaterals”), without limitation, up to Holder the time the loan evidenced by this note is paid in full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, Option is satisfied in full. Upon any default under the terms of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holdernote, in the manner and addition to Lender’s other remedies at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 effectequity, Lender may take any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable such action as Lender deems advisable with respect to any of Guarantor’s personal properties or assets, including without limitation selling those pledged properties or assets at public or private sale on such terms as Lender deems appropriate; and Lender is authorized to act as Borrower’s attorney in fact to endorse or otherwise effect the Obligationstransfer of any of these personal properties or assets or other Collaterals referenced in this note. At any such sale, Lender may be the purchaser. Lender agrees to give Borrower only such notice of sale as is required by applicable law, and all suretyship defenses generallyin any event Borrower agrees that ten (10) days prior notice of a public or private sale is reasonable notice to Borrower. Without limiting Lender may determine the generality order of the foregoingLender’s pursuit of its remedies under this note. Borrower will, the Parent agrees at its expense, take or cause to the provisions of any instrument evidencingbe taken such other action and execute and deliver or cause to be executed and delivered such additional agreements, securing or otherwise executed documents and things as Lender may request in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencingthe Collaterals, securing or otherwise executed in connection with any of including without limitation the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release execution and filing of any entity or financing and other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might statements under the Uniform Commercial Code in effect in any manner applicable state, and Lender is hereby authorized to sign any such agreement or document or thing or statement on Borrower’s behalf and to file any such statement with or without Borrower’s signature. Notwithstanding the above, the Lender’s action should be limited to the extent vary that Lender can reasonably expect to recover the risk sum total of defaulted amount under this Note, including principal, interests and collection costs. In case that the Parent or otherwise operate as a release or discharge action of the Parent (other Lender generates more than the indefeasible payment in fullsum total of defaulted amount, in cash, of all of Lender should give the Obligations), all of which may be done without notice excess amount back to the ParentGuarantor in a reasonable time.
Appears in 2 contracts
Sources: Promissory Note Agreement, Secured Promissory Term Note Agreement (UC Asset LP)
Guaranty. (a) Guaranty of Payment Each Guarantor jointly and Performance. The Parent severally hereby guarantees ----------------------------------- fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, to each Holder the full and punctual payment when due (due, whether at stated maturity, by required pre-paymentacceleration, by acceleration redemption or otherwise), as well as the performance, of all the principal of, Make-Whole Amount, if any, and interest (including any interest accruing after the commencement of the indebtedness any proceeding in bankruptcy and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which any additional interest that would become due accrue but for the operation commencement of such proceeding) on the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code Notes and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, Issuer under the Note Purchase Agreement (all of which are expressly waived by the Parentforegoing being hereinafter collectively called the “Obligations”). Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made Each Guarantor further agrees (to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made extent permitted by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law extended or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or dischargedrenewed, in whole or in part, without notice or otherwise affected further assent from it, and that it shall remain bound under this Guaranty notwithstanding any extension or renewal of any Obligation.
(b) To the extent that any Guarantor shall make a payment hereunder (a “Payment”) which, taking into account all other Payments previously or concurrently made by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensionsother Guarantors, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change exceeds the amount which such Guarantor would otherwise have paid if each Guarantor had paid the aggregate obligations satisfied by such Payment in the time, place or manner of payment of any of same proportion as such Guarantor’s “Allocable Amount” (as hereinafter defined) in effect immediately prior to such Payment bore to the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; Aggregate Allocable Amount (ivas hereinafter defined) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations)Guarantors in effect immediately prior to the making of such Payment, then such Guarantor shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Guarantors for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Payment; provided that each Guarantor covenants and agrees that such right of contribution and indemnification and any and all claims of such Guarantor against any other Guarantor, any endorser or against any of their property shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all of which may the Notes and satisfaction by the Issuer of its obligations under the Note Purchase Agreement and by the Guarantors of their obligations under this Guaranty and the Guarantors shall not take any action to enforce such right of contribution and indemnification, and the Guarantors shall not accept any payment in respect of such right of contribution and indemnification, until all of the Notes and all amounts payable by the Guarantors hereunder have indefeasibly been finally paid in cash in full and all of the obligations of the Issuer under the Note Purchase Agreement and of the Guarantors under this Guaranty have been satisfied As of any date of determination, (1) the “Allocable Amount” of any Guarantor shall be done without notice equal to the Parentmaximum amount which could then be claimed by the Holders under this Guaranty without rendering such claim voidable or avoidable under ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code (11 U.S.C. Sec. 101 et. seq.) or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law; and (2) the “Aggregate Allocable Amount” shall be equal to the sum of each Guarantor’s Allocable Amount. Back to Contents This clause (b) is intended only to define the relative rights of the Guarantors, and nothing set forth in this clause (b) is intended to or shall impair the obligations of the Guarantors, jointly and severally, to pay any amounts to the Holders as and when the same shall become due and payable in accordance herewith. Each Guarantor acknowledges that the rights of contribution and indemnification hereunder shall constitute an asset in favor of any Guarantor to which such contribution and indemnification is owing.
Appears in 2 contracts
Sources: Note Purchase Agreement (Brandywine Operating Partnership Lp /Pa), Note Purchase Agreement (Brandywine Realty Trust)
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Shelf Agreement or any other instrument referred to therein, including (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Shelf Agreement. Each default in payment 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 Shelf Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including reasonable attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, or the Guaranteed Obligations, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the validity or enforceability of this Guaranty Agreement, the Notes, the Shelf Agreement or any rescissions, waivers, compromise, refinancing, consolidation other instrument referred to therein and (z) enforcing or other amendments defending (or modifications of any of determining whether or how to enforce or defend) the terms or provisions of this Note or Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentShelf Agreement.
Appears in 2 contracts
Sources: Private Shelf Agreement (Graybar Electric Co Inc), Private Shelf Agreement (Graybar Electric Co Inc)
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, Net Loss, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Note Agreement or any other instrument referred to therein, including (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in the applicable currency of the foregoingobligation, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment 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 Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 2 contracts
Sources: Multicurrency Note Purchase and Private Shelf Agreement (Idexx Laboratories Inc /De), Multicurrency Note Purchase and Private Shelf Agreement (Idexx Laboratories Inc /De)
Guaranty. (a) Guaranty of Payment Each Borrower hereby unconditionally and Performance. The Parent hereby irrevocably, guarantees ----------------------------------- to Holder Lender:
(i) the full due and punctual payment in full (and not merely the collectibility) by the other Borrowers of the Obligations, including unpaid and accrued interest thereon, in each case when due and payable, all according to the terms of this Agreement, the Notes and the other Financing Documents;
(whether ii) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of all other sums and charges which may at stated maturityany time be due and payable in accordance with this Agreement, the Notes or any of the other Financing Documents;
(iii) the due and punctual performance by required pre-payment, by acceleration or otherwise), as well as the performance, other Borrowers of all of the indebtedness other terms, covenants and conditions contained in the Financing Documents; and
(iv) all the other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the CompanyBorrowers.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor obligations and not liabilities of each Borrower as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, under this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest Section 2.4.10 shall be reduced to such maximum permitted amount.
(c) Waivers by absolute and unconditional and joint and several, irrespective of the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective termsgenuineness, regardless validity, priority, regularity or enforceability of any lawthis Agreement, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms the Notes or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company Financing Documents or any other entity circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Borrower in its capacity as a guarantor expressly agrees that Lender may, in its sole and absolute discretion, without notice to or further assent of such Borrower and without in any way releasing, affecting or in any way impairing the joint and several obligations and liabilities of such Borrower as a guarantor hereunder:
(i) waive compliance with, or any defaults under, or grant any other Person primarily indulgences under or secondarily liable with respect to any of the Financing Documents;
(ii) modify, amend, change or terminate any provisions of any of the Financing Documents;
(iii) grant extensions or renewals of or with respect to the Credit Facilities, the Notes or any of the other Financing Documents;
(iv) effect any release, subordination, compromise or settlement in connection with this Agreement, any of the Notes or any of the other Financing Documents;
(v) agree to the substitution, exchange, release or other disposition of the Collateral or any part thereof, or any other collateral for the Loan or to the subordination of any lien or security interest therein;
(vi) make advances for the purpose of performing any term, provision or covenant contained in this Agreement, any of the Notes or any of the other Financing Documents with respect to which Borrowers shall then be in default;
(vii) make future advances pursuant to this Agreement or any of the other Financing Documents;
(viii) assign, pledge, hypothecate or otherwise transfer the Commitments, the Obligations, the Notes, any of the other Financing Documents or any interest therein, all as and to the extent permitted by the provisions of this Agreement;
(ix) deal in all suretyship defenses generallyrespects with the other Borrowers as if this Section 2.4.10 were not in effect;
(x) effect any release, compromise or settlement with any of the other Borrowers, whether in their capacity as a Borrower or as a guarantor under this Section 2.4.10, or any other guarantor; and
(xi) provide debtor-in-possession financing or allow use of cash collateral in proceedings under the Bankruptcy Code, it being expressly agreed by all Borrowers that any such financing and/or use would be part of the Obligations.
(c) The obligations and liabilities of each Borrower, as guarantor under this Section 2.4.10, shall be primary, direct and immediate, shall not be subject to any counterclaim, recoupment, set off, reduction or defense based upon any claim that a Borrower may have against any one or more of the other Borrowers, Lender, and/or any other guarantor and shall not be conditional or contingent upon pursuit or enforcement by Lender of any remedies it may have against Borrowers with respect to this Agreement, the Notes or any of the other Financing Documents, whether pursuant to the terms thereof or by operation of law. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder Lender shall not be released required to make any demand upon any of Borrowers, or dischargedto sell the Collateral or otherwise pursue, enforce or exhaust its remedies against Borrowers or the Collateral either before, concurrently with or after pursuing or enforcing its rights and remedies hereunder. Any one or more successive or concurrent actions or proceedings may be brought against each Borrower under this Section 2.4.10, either in whole the same action, if any, brought against any one or more of Borrowers or in partseparate actions or proceedings, as often as Lender may deem expedient or otherwise affected by (i) advisable. Without limiting the failure of Holder to assert foregoing, it is specifically understood that any claim modification, limitation or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment discharge of any of the Obligations liabilities or obligations of any one or more of Borrowers, any other guarantor or any rescissionsobligor under any of the Financing Documents, waiversarising out of, compromiseor by virtue of, refinancingany bankruptcy, consolidation arrangement, reorganization or similar proceeding for relief of debtors under federal or state law initiated by or against any one or more of Borrowers, in their respective capacities as borrowers and guarantors under this Section 2.4.10, or under any of the Financing Documents shall not modify, limit, lessen, reduce, impair, discharge, or otherwise affect the liability of each Borrower under this Section 2.4.10 in any manner whatsoever, and this Section 2.4.10 shall remain and continue in full force and effect. It is the intent and purpose of this Section 2.4.10 that each Borrower shall and does hereby waive all rights and benefits which might accrue to any other amendments guarantor by reason of any such proceeding, and Borrowers agree that they shall be liable for the full amount of the obligations and liabilities under this Section 2.4.10, regardless of, and irrespective to, any modification, limitation or modifications discharge of the liability of any one or more of Borrowers, any other guarantor or any obligor under any of the Financing Documents, that may result from any such proceedings.
(d) Each Borrower, as guarantor under this Section 2.4.10, hereby unconditionally, jointly and severally, irrevocably and expressly waives:
(i) presentment and demand for payment of the Obligations and protest of non-payment;
(ii) notice of acceptance of this Section 2.4.10 and of presentment, demand and protest thereof;
(iii) notice of any default hereunder or under the Notes or any of the other Financing Documents and notice of all indulgences;
(iv) notice of any increase in the amount of any portion of or all of the indebtedness guaranteed by this Section 2.4.10;
(v) demand for observance, performance or enforcement of any of the terms or provisions of this Note Section 2.4.10, the Notes or any of the other agreement evidencing, securing or otherwise executed Financing Documents;
(vi) all errors and omissions in connection with Lender’s administration of all indebtedness guaranteed by this Section 2.4.10, except errors and omissions resulting from acts of bad faith;
(vii) any right or claim of right to cause a marshalling of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release assets of any entity one or more of the other person primarily or secondarily liable for any Obligation; or Borrowers;
(vviii) any other act or omission of Lender which might in any manner or to any extent vary changes the scope of the risk as guarantor hereunder; and
(ix) all other notices and demands otherwise required by law which Borrower may lawfully waive. Within ten (10) days following any request of the Parent Lender so to do, each Borrower will furnish Lender and such other persons as Lender may direct with a written certificate, duly acknowledged stating in detail whether or otherwise operate as a release not any credits, offsets or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice defenses exist with respect to the Parentthis Section 2.4.10.
Appears in 2 contracts
Sources: Financing and Security Agreement (Gp Strategies Corp), Financing and Security Agreement (Gp Strategies Corp)
Guaranty. The Guarantor hereby irrevocably and unconditionally guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise)) (b) any expenses, as well as indemnities and other sums which may become due to the performance, of all holders or the Collateral Agent under the terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Note Agreement, including the Collateral Agreement or any other Note Document (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity guarantor of the Notes or other Person primarily Guaranteed Obligations or secondarily liable with respect upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting the generality Guarantor agrees to pay the same when due to the Collateral Agent and/or holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, pursuant to the requirements for payment specified in the Notes, the Parent agrees to Note Agreement, the provisions of any instrument evidencing, securing or otherwise executed Collateral Agreement and the other Note Documents. Each default in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Guaranteed Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications shall give rise to a separate cause of any action hereunder and separate suits may be brought hereunder as each cause of action arises. The Guarantor agrees that the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement. The Guarantor hereby acknowledges and agrees that the Guarantor’s liability hereunder is joint and several with any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Obligations made in accordance with Notes, the terms hereof; (iv) the addition, substitution or release of any entity or Note Agreement and other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Documents.
Appears in 2 contracts
Sources: Guaranty Agreement (Global Water Resources, Inc.), Guaranty Agreement (Global Water Resources, Inc.)
Guaranty. (a) Guaranty The Guarantors, jointly and severally, hereby unconditionally and irrevocably, guaranty to the Collateral Agent, for the benefit of Payment the Noteholders, the punctual payment, as and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturityand payable, by required pre-payment, by acceleration stated maturity or otherwise), as well as the performance, of all Obligations of the indebtedness Company from time to time owing by it in respect of the Securities Purchase Agreement, the Notes and the other Transaction Documents, including, without limitation, all interest, make-whole and other amounts owing under this Note (collectively, that accrues after the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance commencement of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 Insolvency Proceeding of the Company or any Guarantor, whether or not the payment of such interest, make-whole and/or other entity amounts are enforceable or are allowable in such Insolvency Proceeding, and all fees, interest, premiums, penalties, contract causes of actions, costs, commissions, expense reimbursements, indemnifications and all other Person primarily amounts due or secondarily liable with respect to become due under any of the Transaction Documents (all of the foregoing collectively being the “Guaranteed Obligations”), and agrees to pay any and all suretyship defenses generallyexpenses (including reasonable counsel fees and expenses) reasonably incurred by the Collateral Agent in enforcing any rights under this Guaranty. Without limiting the generality of the foregoing, each Guarantor’s liability hereunder shall extend to all amounts that constitute part of the Parent agrees Guaranteed Obligations and would be owed by the Company to the provisions Collateral Agent or any Noteholder under the Securities Purchase Agreement and the Notes but for the fact that they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any instrument evidencingTransaction Party.
(b) Each Guarantor, securing and by its acceptance of this Guaranty, the Collateral Agent and each Noteholder, hereby confirms that it is the intention of all such Persons that this Guaranty and the Guaranteed Obligations of each Guarantor hereunder not constitute a fraudulent transfer or otherwise executed in connection with conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any Obligation similar foreign, federal, provincial or state law to the extent applicable to this Guaranty and agrees the Guaranteed Obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Collateral Agent, the Noteholders and the Guarantors hereby irrevocably agree that the obligations Guaranteed Obligations of each Guarantor under this Guaranty at any time shall be limited to the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change maximum amount as will result in the time, place Guaranteed Obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentconveyance.
Appears in 2 contracts
Sources: Guaranty (Ascent Solar Technologies, Inc.), Guaranty (Ascent Solar Technologies, Inc.)
Guaranty. (a) Guaranty of Payment To induce the Company to enter into this Agreement, Sumitomo, intending to be legally bound, hereby absolutely, irrevocably and Performance. The Parent hereby guarantees ----------------------------------- unconditionally guarantees, as primary obligor and not merely as surety, to Holder the full Company the due and punctual payment of all amounts payable from Parent or Merger Sub under this Agreement, in each case as and when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "“Guaranteed Obligations"”), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code whether now or hereafter made, incurred or created, whether absolute or contingent, liquidated or unliquidated, and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Codehowever arising under this Agreement. This guaranty guarantee may not be revoked or terminated and will remain in full force and effect without interruption and will be binding on Sumitomo and its successors and assigns until the Guaranteed Obligations have been satisfied in full.
(b) Sumitomo promises and undertakes to make all payments hereunder without deduction or offset for any defense, claim, or counterclaim of Sumitomo of any kind.
(c) The guarantee set forth in Section 9.13(a) (the “Guarantee”) is an absolute, unconditional unconditional, and continuing guaranty guarantee of the full and punctual payment by Parent and performance of all Merger Sub of the Guaranteed Obligations and not of their collectability only collection and is binding upon Sumitomo and its successors and assigns, and Sumitomo irrevocably waives any right to revoke the guarantee set forth in no way conditioned upon any requirement that Holder first attempt this Section 9.13 as to collect any of the Obligations from the Company or resort future transactions giving rise to any collateral security or other means of obtaining paymentGuaranteed Obligations. Should the Company Parent or Merger Sub default in the payment or performance of any of the Guaranteed Obligations, the Sumitomo’s obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, will become immediately due and payable in immediately available funds to Holderthe Company or, without demand to the extent such obligations become due and payable after the Effective Time, to the former holders of Certificates, Book-Entry Shares, Company Share Awards, or notice of any nature, all of which are expressly waived by to the ParentIndemnified Persons. Payments by the Parent Claims hereunder may be required by ▇▇▇▇▇▇ made on any number of one or more occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(bd) Parent's Agreement Sumitomo agrees that the Guaranteed Obligations will not be released or discharged, in whole or in part, or otherwise affected or impaired by (i) the failure or delay on the part of the Company to Pay Enforcement Costsassert any claim or demand or to enforce any right or remedy against Parent or Merger Sub, etc. The except to the extent Parent ------------------------------------------------ further agrees, as the principal obligor and not or Merger Sub successfully asserts rights as a guarantor onlyresult of such failure or delay that are not the subject to subclause (iv) of this Section 9.13(d); (ii) any renewal, to pay to Holderextension, on demandacceleration or other change in the time, all reasonable costs and expenses (including court costs and reasonable legal expensesplace or manner of payment of the Guaranteed Obligations or rescission, including waiver, compromise, consolidation, subordination or other waiver, amendment or modification of any of the allocated cost terms or provisions of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly Agreement made in accordance with the terms of this Agreement; (iii) any change in the corporate existence, structure or ownership of Parent or Merger Sub; (iv) any insolvency, bankruptcy, reorganization or other similar proceeding affecting Parent or Merger Sub or their respective terms, regardless assets; (v) any request or acceptance of other guaranties of the Guaranteed Obligations or the taking or holding of security for the payment of the Guaranteed Obligations; (vi) the enforcement or application of any law, regulation or order security now or hereafter held in effect respect of the Guaranteed Obligations; (vii) the exercise of other rights or remedies available to the Company or the other beneficiaries, or any of them, under this Agreement, at law or in equity, except to the extent Parent or Merger Sub successfully asserts rights as a result of such exercise that are not the subject to subclause (iv) of this Section 9.13(d); and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any jurisdiction manner or to any extent vary the risk of Sumitomo as an obligor in respect of the Guaranteed Obligations (in all cases other than payment in full of the Guaranteed Obligations, any insolvency, bankruptcy, reorganization or other similar proceeding affecting any Sumitomo or its assets, and defenses to the payment of such terms the Guaranteed Obligations that are available to Parent or Merger Sub under this Agreement that are not the rights subject to subclause (iv) of Holder with respect theretothis Section 9.13(d)). The Parent Sumitomo waives promptness, diligence, notice of the acceptance of the Guarantee and of the Guaranteed Obligations, presentment, demanddemand for payment, notice of non-performance, default, dishonor and protest, notice of acceptance, notice of any the Guaranteed Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, statute of limitations, moratorium law Law or other similar law 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, any right to require the Company to proceed against Parent or Merger Sub or any other Person, any right to require the Company to proceed against or exhaust any security or pursue any other remedy, any defense arising by reason of the incapacity, lack of authority or any disability or other defense of Parent or Merger Sub and all suretyship defenses generally (in all cases other than fraud by the Company, payment in full of the Guaranteed Obligations, any principles or provisions of law, statutory or otherwise, that are or might be in conflict with the terms of the guarantee set forth in this Section 9.13, any legal or equitable discharge of Sumitomo’s obligations hereunder and defenses to the payment of the Guaranteed Obligations that are available to Parent or Merger Sub under this Agreement). Sumitomo 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 9.13 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 9.13 will operate as a waiver thereof, nor will any single or partial exercise by the Company of any right, remedy or power pursuant to this Section 9.13 preclude any other or future exercise of any right, remedy or power pursuant to this Section 9.13. Each and every right, remedy and power granted to the Company pursuant to this Section 9.13 or allowed it by Law or agreement with respect to this Section 9.13 will be cumulative and not exclusive of any other, and may be exercised by the Company at any time or from time to time. The Company will 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 or Merger Sub prior to proceeding against Sumitomo 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 Sumitomo and the Company. Sumitomo agrees that Section 9.02, Section 9.08 and Section 9.10 apply to Sumitomo solely with respect to this Section 9.13.
(f) Sumitomo hereby represents and warrants to the Company and covenants that: (i) the execution, delivery and performance of this Agreement has been duly authorized by all necessary action, and no other proceedings on the part of Sumitomo or its stockholders are necessary to authorize this Agreement, and do not contravene any provision of Sumitomo’s organizational documents or any Law or contractual restriction binding on Sumitomo or its assets; (ii) this Agreement constitutes a legal, valid and binding obligation of Sumitomo enforceable against Sumitomo in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency (including all Laws relating to fraudulent transfers), reorganization, moratorium or similar laws affecting creditors’ rights generally and subject to the effect of general principles of equity (regardless of whether considered in an Action at law or in equity), and (iii) Sumitomo will not issue any press release or other communication in contravention of Section 6.07.
(g) In the event that all or any portion of the Guaranteed Obligations is paid by Parent or Merger Sub, the obligations of Sumitomo hereunder will be reinstated in the event that all or any part of such payment(s) is rescinded or recovered directly or indirectly from the Company or any other entity beneficiary as a preference, fraudulent transfer or other Person primarily or secondarily liable with respect to any of the Obligationsotherwise, and all suretyship defenses generally. Without limiting the generality of the foregoingany such payments that are so rescinded or recovered shall constitute Guaranteed Obligations.
(h) Nothing in this Section 9.13 will waive any defenses, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in partcounterclaims, or otherwise affected by (i) the failure rights of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the setoff that Parent or otherwise operate as a release Merger Sub may have under this Agreement or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentapplicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Urovant Sciences Ltd.), Merger Agreement (Sumitomo Chemical Co., Ltd.)
Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby Guarantor unconditionally guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by of any and all indebtedness and the satisfaction and performance when required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness covenants, obligations and other amounts owing under this Note liabilities (collectively, the "ObligationsObligations and Liabilities"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code Company under this Agreement. If any or all Obligations and the operation of (S)(S)502(b) and 506(b) Liabilities of the Federal Bankruptcy Code. This guaranty is an absoluteCompany hereunder are not timely satisfied by the Company, unconditional the Guarantor unconditionally promises to perform or cause to be performed such Obligations and continuing guaranty Liabilities to RMST or to pay to RMST, without deduction of any kind, in lawful money of the full United States, the amount of the Obligation and punctual Liability if the same shall be monetary in nature. The Guarantor acknowledges that a separate action or actions may be brought and prosecuted against him/her/them whether or not action is brought against the Company and whether or not the Company is joined in any such separate action or actions. The Guarantor authorizes RMST, without notice or demand (except as shall be required by applicable law providing the same cannot be waived), and without affecting or impairing the liability of the Guarantor under this Section, from time to time in accordance with this Agreement or by mutual agreement with the Company, to renew, compromise, extend, increase, accelerate or otherwise change the time for payment of, or otherwise change the terms of, any indebtedness of the Company or to modify the terms and time for performance of any or all Obligations and Liabilities under this Agreement. The Guarantor waives notice of dishonor, notice of acceptance, any right to require RMST to proceed against the Company, or to pursue any other remedy in RMST's power whatsoever. Until all of the Obligations and not Liabilities shall have been fully performed, and until all periods under applicable law to contest preferential or fraudulent payments have expired, Guarantor waives all rights of their collectability only contribution and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations subrogation from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.
Appears in 2 contracts
Sources: Mortgage Purchase Agreement (Homegold Financial Inc), Mortgage Purchase Agreement (Austin Funding Com Corp)
Guaranty. Each Subsidiary Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Subsidiary Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, Modified Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations"), including Note Agreement or any other instrument referred to therein (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect from the Obligors or any other guarantor of the Notes (including, without limitation, any other Subsidiary Guarantor hereunder) or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the such Guaranteed Obligations, each Subsidiary Guarantor agrees to pay the obligations of same when due to the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holderholders entitled thereto, without demand demand, presentment, protest or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holderkind, in the manner and at currency in which such Guaranteed Obligations are payable under the place of Note Agreement, pursuant to the requirements for payment specified therefor for payments hereunder to be made by in the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty Notes and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth Note Agreement. Each default in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment 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 Subsidiary Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Subsidiary Guaranty Agreement. Each Subsidiary Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Subsidiary Guarantor, by any other Subsidiary Guarantor or by the Obligors of any warranty, covenant, term or condition in, or the occurrence of any default under, this Subsidiary Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Subsidiary Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Subsidiary Guaranty Agreement. Each Subsidiary Guarantor hereby acknowledges and agrees that such Subsidiary Guarantor’s liability hereunder is joint and several with the other Subsidiary Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 2 contracts
Sources: Subsidiary Guaranty Agreement, Subsidiary Guaranty Agreement (Littelfuse Inc /De)
Guaranty. Each Subsidiary Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Subsidiary Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make‑Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Notes or the Note Agreement (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”) up to the Maximum Guaranteed Amount (as defined below). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect from any Obligor or any other Subsidiary Guarantor of the Notes (including, without limitation, any other Subsidiary Guarantor hereunder) or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of the Obligations from the Company or resort such Guaranteed Obligations, each Subsidiary Guarantor agrees to pay any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any unpaid amount of the Obligations, Guaranteed Obligations when due to the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holderholders entitled thereto, without demand demand, presentment, protest or notice of any naturekind, all in lawful money of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number United States of occasions. All payments by the Parent hereunder shall be made America, pursuant to the Holder, requirements for payment specified in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty Notes and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth Note Agreement. Each default in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment 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 Subsidiary Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Subsidiary Guaranty Agreement. Each Subsidiary Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including reasonable attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any rescissionsbreach by such Subsidiary Guarantor, waivers, compromise, refinancing, consolidation by any other Subsidiary Guarantor or other amendments or modifications by any Obligor of any warranty, covenant, term or condition in, or the occurrence of any default under, this Subsidiary Guaranty Agreement, the terms Notes, or the Note Agreement, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the validity or enforceability of this Subsidiary Guaranty Agreement, the Notes, or the Note Agreement, and (z) enforcing or defending the provisions of this Note or Subsidiary Guaranty Agreement. Each Subsidiary Guarantor hereby acknowledges and agrees that such Subsidiary Guarantor’s liability hereunder is joint and several with the other Subsidiary Guarantors, the Parent and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 2 contracts
Sources: Note Purchase and Guarantee Agreement (Paychex Inc), Note Purchase and Guarantee Agreement (Paychex Inc)
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Yield Maintenance Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Shelf Agreement or any other instrument referred to therein, including (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Shelf Agreement. Each default in payment 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 Shelf Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Shelf Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Shelf Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentShelf Agreement.
Appears in 2 contracts
Sources: Note Purchase Agreement (Franklin Electric Co Inc), Note Purchase and Private Shelf Agreement (Franklin Electric Co Inc)
Guaranty. Each Guarantor hereby unconditionally and irrevocably guarantees to the Administrative Agent, each Lender, each Swing Line Lender, each L/C Issuer and each other Person from time to time holding or owed payment with respect to the Guaranteed Obligations (acollectively, the “Guarantee Beneficiaries”) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual prompt payment when due (due, whether at stated maturity, by required pre-paymentprepayment, by acceleration upon acceleration, demand or otherwise), as well as the performanceand at all times thereafter, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Guaranteed Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations terms contained in the Loan Documents. This Guaranty is a guaranty of payment and not of their collectability only performance and is in no way conditioned upon any requirement that Holder first attempt to collect any not merely a guaranty of the Obligations from the Company or resort to any collateral security or other means of obtaining paymentcollection. Should the Company default in the payment or performance of any of the ObligationsAs used herein, the obligations of the Parent hereunder with respect to such term “Guaranteed Obligations” means any and all existing and future Obligations in default shall, upon demand by Holder, become immediately due and which may be payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made Borrowers to the HolderGuarantee Beneficiaries under the Credit Agreement and any other Loan Document (and, in the manner each case, including all renewals, extensions, amendments, refinancings and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costsother modifications thereof and all costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs attorneys’ fees and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder any Guarantee Beneficiary in connection with the Obligationscollection or enforcement thereof (in each case, this guaranty and to the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted extent required to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generallyCredit Agreement)). Without limiting the generality of the foregoing, the Parent agrees Guaranteed Obligations shall include any such indebtedness, obligations, and liabilities which may be or hereafter become unenforceable or shall be an allowed or disallowed claim under any proceeding or case commenced by or against any Guarantor, any Borrower or any other guarantor under any Debtor Relief Law, and shall include interest that accrues after the commencement by or against any Borrower of any proceeding under any Debtor Relief Laws. Anything contained herein to the contrary notwithstanding, the obligations of any individual 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 Section 548 of the Bankruptcy Code (Title 11, United States Code) or any comparable provisions of any instrument evidencing, securing similar federal or otherwise executed in connection with any Obligation and agrees that state law. Without limiting the obligations generality of the Parent hereunder foregoing unconditional guarantee, for the avoidance of doubt, this Guaranty shall not in no manner be released or dischargedreleased, in whole or in part, discharged or otherwise affected or limited by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (iia) any extensionswaiver, compromisemodification or amendment of, refinancingor supplement to, consolidation or renewals of any Obligation; documentation governing the Guarantee Obligations, including the Credit Agreement and the other Loan Documents, (iiib) any change in the timecorporate existence, place structure or manner ownership of payment of (x) any of the Obligations or Borrower, any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note Guarantor or any other agreement evidencingguarantor of the Guaranteed Obligations or (y) any Guarantee Beneficiary, securing (c) the existence of any claim, set-off or otherwise executed other rights which any Guarantor may have at any time against any Borrower, any Guarantee Beneficiary or any other entity, whether in connection with the Loan Documents or with unrelated transactions; provided, that this clause (c) shall not prevent the assertion of such claim by separate suit or in a compulsory counterclaim, (d) any invalidity or unenforceability relating to or against any Borrower for any reason relating to the Loan Documents or any other provision of applicable law or regulation purporting to prohibit the Obligations made in accordance with the terms hereof; (iv) the additionpayment by any Borrower, substitution any Guarantor or release any other guarantor of any entity or other person primarily or secondarily liable for any Obligation; Guaranteed Obligations or (ve) any other act or omission which might in to act or delay of any manner kind by any Borrower, any Guarantee Beneficiary or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentperson.
Appears in 2 contracts
Sources: Credit Agreement (Celanese Corp), Credit Agreement (Celanese Corp)
Guaranty. (a) Guaranty Each Guarantor, jointly and severally with each other Guarantor, unconditionally and irrevocably guarantees to the Holders the due, prompt and complete payment by the Company of Payment the principal of, Make-Whole Amount, if any, and Performance. The Parent hereby guarantees ----------------------------------- to Holder interest on, and each other amount due under, the full Notes or the Note Purchase Agreement, when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration declaration or otherwise) in accordance with the terms of the Notes and the Note Purchase Agreement (the Notes and the Note Purchase Agreement being sometimes hereinafter collectively referred to as the “Note Documents” and the amounts payable by the Company under the Note Documents (including any attorneys’ fees and expenses), as well being sometimes collectively hereinafter referred to as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "“Obligations"”), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty Guaranty is an absolute, unconditional and continuing a guaranty of the full and punctual payment and performance not just of all of the Obligations and not of their collectability only collectibility and is in no way conditioned or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to upon any collateral security other event, contingency or other means of obtaining paymentcircumstance whatsoever. Should If for any reason whatsoever the Company default in shall fail or be unable duly, punctually and fully to pay such amounts as and when the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, same shall become immediately due and payable to Holderpayable, each Guarantor, without demand demand, presentment, notice of acceleration, notice of intent to accelerate, protest or notice of any naturekind, all of which are expressly waived by the Parent. Payments by the Parent hereunder may will forthwith pay or cause to be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made paid such amounts to the HolderHolders under the terms of such Note Documents, in lawful money of the manner and United States, at the place of payment specified therefor for payments hereunder in the Note Purchase Agreement, or perform or comply with the same or cause the same to be made by performed or complied with, together with interest (to the extent provided for under such Note Documents) on any amount due and owing from the Company.
(b) Parent's Agreement to Pay Enforcement Costs. Each Guarantor, etc. The Parent ------------------------------------------------ further agreespromptly after demand, as the principal obligor and not as a guarantor only, to will pay to Holder, on demand, all the Holders the reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when collecting such amounts become due until paymentor otherwise enforcing this Guaranty, whether before or after judgmentincluding, at without limitation, the rate reasonable fees and expenses of interest set forth in (S)1 hereofcounsel. Notwithstanding the foregoing, provided that if such interest exceeds the maximum amount permitted right of recovery against each Guarantor under this Guaranty is limited to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable extent it is judicially determined with respect to any Guarantor that entering into this Guaranty would violate Section 548 of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the United States Bankruptcy Code or any comparable provisions of any instrument evidencingstate law, securing or otherwise executed in connection with any Obligation and agrees which case such Guarantor shall be liable under this Guaranty only for amounts aggregating up to the largest amount that the would not render such Guarantor’s obligations hereunder subject to avoidance under Section 548 of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company United States Bankruptcy Code or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals comparable provisions of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentstate law.
Appears in 2 contracts
Sources: Guaranty (Alliance Data Systems Corp), Note Purchase Agreement (Hunt J B Transport Services Inc)
Guaranty. (a) Guaranty Subject to Section 2.21 of Payment and Performance. The Parent the Credit Agreement, each Guarantor hereby guarantees ----------------------------------- to Holder 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), as well as the performance, ) of all of the indebtedness 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 owing payable by the Borrower under this Note (collectively, the "Obligations"Credit Agreement), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a§362(a) of the Federal Bankruptcy Code (Title 11, United States Code) and the operation of (S)(S)502(b) and 506(b§502(b) of the Federal Bankruptcy CodeCode (collectively, the “Guaranteed Obligations”). This guaranty Guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations such Guaranteed Obligations, and not of their collectability collectibility only and is in no way conditioned upon any requirement that Holder the Administrative Agent or any Lender first attempt to collect any of the Guaranteed Obligations from the Company Borrower or resort to any collateral security or other means of obtaining payment. Should the Company default in an Event of Default occur with respect to the payment or performance of any such Guaranteed Obligations of the ObligationsBorrower, the obligations of the Parent hereunder Guarantors under this Guaranty with respect to such Guaranteed Obligations in default shall, upon demand by Holderthe Administrative Agent, become immediately due and payable to Holderthe Administrative Agent, for the benefit of the Lenders and the Administrative Agent, without demand or notice of any nature, all of which are expressly waived by the Parenteach Guarantor. Payments by the Parent hereunder any Guarantor in respect of this Guaranty may be required by ▇▇▇▇▇▇ the Administrative Agent on any number of occasions. All payments by the Parent hereunder any Guarantor in respect of this Guaranty shall be made to the HolderAdministrative Agent, in the manner and at the place of payment specified therefor in the Credit Agreement, for payments the account of the Lenders and the Administrative Agent. Anything contained herein to the contrary notwithstanding, the obligations of each Guarantor hereunder at any time shall be limited to be made by an aggregate amount equal to the Company.
(b) Parent's Agreement largest amount that would not render its obligations hereunder subject to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not avoidance as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred fraudulent transfer or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- conveyance under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 §548 of the Company Federal Bankruptcy Code or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the comparable provisions of any instrument evidencing, securing similar federal or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentstate Law.
Appears in 2 contracts
Sources: Credit Agreement (White Mountains Insurance Group LTD), Credit Agreement (White Mountains Insurance Group LTD)
Guaranty. (a) Guaranty of Payment Guarantor hereby absolutely, irrevocably and Performance. The Parent hereby unconditionally guarantees ----------------------------------- to Holder the full and punctual payment and performance when due of all obligations of Obligor now or hereafter existing under the Agreement (collectively, the "Guaranteed Obligations"), and agrees to pay any and all costs incurred by Counterparty in enforcing or attempting to enforce any rights under this Guaranty. This is a guaranty of payment and performance, not of collection. For purposes hereof, the phrase “when due” shall include when any such obligations of Obligor under the Agreement would be due or are required to be performed, whether at stated maturity, by required pre-paymentupon demand, by acceleration or otherwise), as well as in accordance with the performanceAgreement without giving effect to any stay, injunction or similar action resulting from a bankruptcy or similar proceeding or any order of all of the indebtedness and other amounts owing under this Note (collectivelyany event or governmental entity affecting Obligor, such maturity, demand or acceleration being deemed to have occurred upon, the "Obligations")taking effect of such stay, including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company injunction or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Companysimilar action.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as In the principal obligor and not as a guarantor only, event Obligor shall fail to pay any amount owed to Holderthe Counterparty under the Agreement, on demandGuarantor shall, all reasonable costs and expenses (including court costs and reasonable legal expensesupon written demand from Counterparty of such failure, including the allocated cost of staff counsel) incurred pay or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted cause to be paid --------- under applicable lawthe amount owed within ten (10) business days of receipt of such notice. In the event payment is not made in accordance with the foregoing sentence, then the amount owed shall bear interest from the date of such interest shall be reduced demand until receipt of such payment at a rate per annum equal to such maximum permitted amountthe Prime Rate, accruing monthly.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees Notwithstanding anything to the provisions contrary herein, Guarantor’s aggregate obligation to Counterparty hereunder is limited to [________] U.S Dollars ($___) (the “Maximum Guaranteed Amount”) (it being understood for purposes of calculating the Maximum Guaranteed Amount of Guarantor hereunder that any instrument evidencingpayment by Guarantor either directly or indirectly to Counterparty, securing pursuant to a demand made upon Guarantor by Counterparty or otherwise executed made by Guarantor pursuant to its obligations under this Guaranty including any indemnification obligations, shall reduce Guarantor’s maximum aggregate liability hereunder on a dollar-for-dollar basis), plus costs and expenses incurred by Guaranteed party in connection with any Obligation and agrees enforcing this Guaranty. EXCEPT AS EXPRESSLY PAYABLE BY OBLIGOR PURSUANT TO THE AGREEMENT, IN NO EVENT SHALL GUARANTOR BE SUBJECT TO ANY CONSEQUENTIAL, EXEMPLARY, EQUITABLE, LOSS OF PROFITS PUNITIVE OR TORT DAMAGES.
(d) Guarantor guarantees that the obligations of Guarantor under this Guaranty are independent of the Parent obligations of Obligor under the Agreement, and a separate action or actions may be brought against Guarantor to enforce this Guaranty, irrespective of whether any action is brought against Obligor or whether Obligor is joined in any such action or actions. Subject to the above notice requirement, Counterparty shall have the right to proceed first and directly against Guarantor under this Guaranty without first proceeding against Obligor or exhausting any other remedies which it may have.
(e) If any amount paid by Obligor in respect of the Guaranteed Obligations is required to be repaid by Counterparty pursuant to a court order in any bankruptcy or similar Legal Proceeding, Guarantor’s Obligations hereunder shall not be released restored as if such payment by Obligor had never been made, and Guarantor, to the extent permitted by applicable law or order, waives the benefit of any statute of limitations affecting the enforceability of this provision of the Guaranty.
(f) This Guaranty shall terminate upon the date that all of the Guaranteed Obligations are indefeasibly discharged. It is understood and agreed, however, that notwithstanding any such termination, this Guaranty shall continue in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable full force and effect with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the all Guaranteed Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or arising prior to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentsuch termination.
Appears in 2 contracts
Sources: Renewable Energy Purchase Agreement, Renewable Energy Purchase Agreement
Guaranty. (a) Guaranty Each of Payment the Guarantors hereby, jointly and Performance. The Parent hereby severally, unconditionally and irrevocably, guarantees ----------------------------------- to Holder the full Collateral Agent, for the ratable benefit of the Secured Parties and punctual each of their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company and the Guarantors when due (whether at the stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code Company Obligations and the operation performance by the Company of (S)(S)502(b) and 506(b) each of the Federal Bankruptcy Codecovenants and other obligations under the Indenture and the other Note Documents, including, without limitation, all Secured Obligations (each such Guarantor’s guarantee contained in this Article II, collectively, this “Guaranty”). This guaranty is an absolute, unconditional and continuing guaranty a guarantee of the full and punctual payment and performance not collection and the liability of all of the Obligations each Guarantor is primary and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Companysecondary.
(b) Parent's Agreement Anything herein or in any other Note Document to Pay Enforcement Coststhe contrary notwithstanding, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum liability of each Guarantor hereunder and under the other Note Documents shall in no event exceed the amount permitted to which can be paid --------- guaranteed by such Guarantor under applicable law, then such interest shall be reduced federal and state laws relating to such maximum permitted amountthe insolvency of debtors.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent Each Guarantor agrees ---------------------------------------------- that the Obligations will be paid may at any time and performed strictly in accordance with their respective terms, regardless from time to time exceed the amount of the liability of such Guarantor hereunder without impairing the Guaranty or affecting the rights and remedies of the Collateral Agent or any other Secured Party hereunder.
(d) Each Guarantor agrees that if the maturity of any lawof the Company Obligations is accelerated by bankruptcy or otherwise, regulation such maturity shall also be deemed accelerated for the purpose of this Guaranty without demand or order now or hereafter notice to such Guarantor. This Guaranty shall remain in full force and effect until Payment in any jurisdiction affecting Full of the Company Obligations shall have occurred.
(e) No payment made by the Company, any of such terms the Guarantors, any other guarantor or any other Person or received or collected by the rights Collateral Agent or any other Secured Party from the Company, any of Holder with respect thereto. The Parent waives promptnessthe Guarantors, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of guarantor or any kind, all defenses which may be available other Person by virtue of any valuationaction or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Secured Obligations shall be deemed to modify, stayreduce, moratorium law release or otherwise affect the liability of any Guarantor hereunder which shall, notwithstanding any such payment (other similar law now or hereafter than any payment made by such Guarantor in effect, any right to require the marshalling of assets respect of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation payment received or other amendments or modifications of any collected from such Guarantor in respect of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Company Obligations), all of which may be done without notice remain liable for the outstanding Secured Obligations up to the Parentmaximum liability of such Guarantor hereunder until Payment in Full of the Company Obligations shall have occurred.
Appears in 2 contracts
Sources: Second Lien Guaranty and Collateral Agreement (Ultra Petroleum Corp), Exchange Agreement (Ultra Petroleum Corp)
Guaranty. The Guarantor hereby absolutely, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety,
(a) Guaranty the due and prompt payment by the Parent of:
(i) the principal of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder premium, if any, and interest at the full rate specified in the Note (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding (“Post-Petition Interest”)) on the Note (including Post-Petition Interest), when and punctual payment when due (as due, whether at stated scheduled maturity, by required pre-paymentdate set for prepayment, by acceleration or otherwise, and
(ii) all other monetary obligations of the Parent to the Creditor under the Note, when and as due, including fees, costs, expenses (including, without limitation, fees and expenses of counsel incurred by the Creditor in enforcing any rights under this Agreement or the Note), as well as contract causes of action and indemnities, whether primary, secondary, direct or indirect, absolute or contingent, fixed or otherwise (including monetary obligations incurred during the performancependency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding);
(b) the due and prompt performance of all covenants, agreements, obligations and liabilities of the indebtedness and other amounts owing Parent under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation or in respect of the automatic stay pursuant to Note; and
(S)362(ac) of the Federal Bankruptcy Code due and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual prompt payment and performance of all covenants, agreements, obligations and liabilities of the Guarantor under or in respect of this Agreement and the Note, all such obligations in subsections (a) through (c), whether now or hereafter existing, being referred to collectively as the “Obligations.” The Guarantor further agrees that all or part of the Obligations may be increased, extended, substituted, amended, renewed or otherwise modified without notice to or consent from the Guarantor and such actions shall not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any affect the liability of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generallyGuarantor hereunder. Without limiting the generality of the foregoing, the Parent agrees Guarantor’s liability shall extend to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees all amounts that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any constitute part of the Obligations and would be owed by Parent to the Creditor under or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any in respect of the terms Note but for the fact that they are unenforceable or provisions not allowable due to the existence of this Note a bankruptcy, reorganization or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to similar proceeding involving the Parent.
Appears in 2 contracts
Sources: Exchange Agreement (Resonant Inc), Secured Subsidiary Guaranty (Resonant Inc)
Guaranty. (a) Guaranty Subject to the provisions of Payment subsection 2.1(b), the Guarantor hereby, jointly and Performance. The Parent hereby severally, unconditionally and irrevocably, guarantees ----------------------------------- to Holder the full Agent and punctual the Guaranteed Creditors and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Borrower when due (whether at the stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and Borrower’s Obligations up to but not exceeding the operation of (S)(S)502(b) and 506(b) amount of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional loan obligations plus interest and continuing guaranty costs of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Companyenforcement.
(b) Parent's Agreement Anything herein or in any other Loan Document to Pay Enforcement Coststhe contrary notwithstanding, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum liability of the Guarantor hereunder and under the other Loan Documents shall in no event exceed the amount permitted to which can be paid --------- guaranteed by the Guarantor under applicable law, then such interest shall be reduced federal and state laws relating to such maximum permitted amountthe insolvency of debtors.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom The Guarantor further agrees to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of pay any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kindexpenses (including, without limitation, all defenses reasonable fees and disbursements of counsel) which may be available paid or incurred by the Agent or any Guaranteed Creditor in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or collecting, any or all of the Borrower’s Obligations and/or enforcing any rights with respect to, or collecting against, the Guarantor under this Guaranty. This Guaranty shall remain in full force and effect until the Borrower’s Obligations are paid in full, notwithstanding that from time to time prior thereto no amounts may be outstanding under the Credit Agreement.
(d) The Guarantor agrees that the Borrower’s Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing this Guaranty or affecting the rights and remedies of the Agent or any Guaranteed Creditor hereunder.
(e) No payment or payments made by the Borrower, the Guarantor, any other guarantor or any other Person or received or collected by the Agent or any Guaranteed Creditor from the Borrower, the Guarantor, any other guarantor or any other Person by virtue of any valuation, stay, moratorium law action or other similar law now proceeding or hereafter any set-off or appropriation or application at any time or from time to time in effect, any right to require the marshalling reduction of assets or in payment of the Company Borrower’s Obligations shall be deemed to modify, reduce, release or any other entity or other Person primarily or secondarily liable with respect to any otherwise affect the liability of the ObligationsGuarantor hereunder which shall, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of notwithstanding any instrument evidencing, securing such payment or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent payments (other than payments made by the indefeasible payment Borrower or the Guarantor in full, in cash, of all respect of the Borrower’s Obligations or payments received or collected from the Guarantor in respect of the Borrower’s Obligations), all of which may be done without notice remain liable for the Borrower’s Obligations up to the Parentmaximum liability of the Guarantor hereunder until the Borrower’s Obligations are paid in full.
(f) The Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to the Agent or any Guaranteed Creditor on account of its liability hereunder, it will notify the Agent in writing that such payment is made under this Guaranty for such purpose.
Appears in 2 contracts
Sources: Guaranty (Resaca Exploitation, Inc.), Guaranty (Resaca Exploitation, Inc.)
Guaranty. (a) Guaranty of Payment and Performance. The Parent Borrower hereby absolutely, irrevocably and unconditionally guarantees ----------------------------------- to Holder the full and punctual prompt payment when due (in the applicable Currency, whether at stated maturity, by required pre-paymentacceleration, by acceleration mandatory prepayment, by notice of intention to prepay or otherwise), as well as the performance, of all of the indebtedness obligations and other amounts owing liabilities of each Subsidiary Borrower under this Note the Loan Documents, in each case whether fixed, contingent, now existing or hereafter arising, created or assumed, incurred or acquired, and whether before or after the occurrence of any Event of Default under Sections 9.1(g) or (h), including any obligation or liability in respect of any breach of any representation or warranty, and all post-petition interest, funding losses and make-whole premiums, whether or not allowed as a claim in any proceeding arising in connection with any Event of Default under Sections 9.1(g) or (h) (collectively, the "Borrower Obligations"). This Section 11 constitutes a guaranty of payment, including all such Obligations which would become due but for the operation and none of the automatic stay pursuant Agents or the Lenders shall have any obligation to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon enforce any requirement that Holder first attempt to collect Loan Document or exercise any of the Obligations from the Company right or resort remedy with respect to any collateral security thereunder by any action, including making or other means of obtaining payment. Should the Company default in the payment perfecting any claim against any Person or performance of any collateral security for any of the ObligationsBorrower Obligations prior to being entitled to the benefits of this Section 11. The Administrative Agent may, at its option, proceed against the Parent Borrower, in the first instance, to enforce any of the obligations and liabilities of the Parent hereunder with respect Borrower under this Section 11, whether fixed, contingent, now existing or hereafter arising, created, assumed, incurred or acquired (collectively, the "Guarantor Obligations") without first proceeding against any Subsidiary Borrower or any other Person, and without first resorting to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand any other rights or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agreesremedies, as the principal obligor and not Administrative Agent may deem advisable. In furtherance hereof, if either Agent or any Lender is prevented by law from collecting or otherwise hindered from collecting or otherwise enforcing any Obligation in accordance with its terms, such Agent or such Lender, as a guarantor onlythe case may be, shall be entitled to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable receive hereunder from the time when such amounts become due until payment, whether before or Parent Borrower after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoingdemand therefor, the Parent agrees to the provisions of any instrument evidencing, securing sums which would have been otherwise due had such collection or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall enforcement not be released been prevented or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.hindered. -77- 84
Appears in 2 contracts
Sources: Credit Agreement (Bowne & Co Inc), Credit Agreement (Bowne & Co Inc)
Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- Each Partner (together with any Person who may hereafter agree to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing become a guarantor under this Note (Agreement by signing a written instrument expressly agreeing to be so bound, each a "GUARANTOR," and collectively, the "ObligationsGUARANTORS")) hereby unconditionally and irrevocably guarantees severally (and not jointly) the full payment in cash, including all when due, of such Obligations which would become due but for the operation Guarantor's Pro Rata Share of the automatic stay pursuant Clawback Obligation, and if for any reason the Partnership (the "OBLIGOR") shall fail fully and punctually to (S)362(a) pay the Clawback Obligation, each of the Federal Bankruptcy Code Guarantors shall pay its Pro Rata Share of such Clawback Obligation; provided that (i) the payment obligation of each Guarantor shall be reduced by any amounts applied from such Guarantor's Segregated Account and (ii) the operation of amount payable by each Guarantor shall not exceed the aggregate Carried Interest distributions received by such Guarantor directly or indirectly from the Partnership (S)(S)502(bor held in such Guarantor's Segregated Account) and 506(bless the deemed income tax liability (calculated based on the Tax Percentage) of the Federal Bankruptcy Codeon income allocated with respect to such Carried Interest distributions. This guaranty Agreement is an absolute, unconditional and unconditional, continuing guaranty guarantee of the full and punctual payment and performance of all of the Obligations and not of their collectability only collection, and is in no way conditioned or contingent upon any requirement that Holder first attempt to collect from the Obligor, enforce performance by the Obligor or on any other condition or contingency.
(a) Each guaranty pursuant to paragraph (a) above is expressly for the benefit of the Obligations from Funds and the Company limited partners of the Funds (the "FUND LIMITED PARTNERS") and shall not be impaired, discharged or resort terminated by any other act or omission that may, in accordance with applicable law, affect the enforceability of a guaranty, and shall not be affected by the bankruptcy, insolvency or inability to pay of the Obligor, a Guarantor or of any collateral security or other means party. Paragraph (a) above may not be amended in a manner adverse to the Fund Limited Partners without the consent of obtaining payment. Should the Company default "Required Limited Partners" of the Funds (as defined in the payment or performance of any of Fund Partnership Agreements).
(b) Promptly following the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be determination that a contribution is required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(bObligor pursuant to Section 10.04(b) Parentof the Fund Partnership Agreement, the Obligor shall notify the Guarantors of each Guarantor's Agreement Pro Rata Share of the amount of the Clawback Obligation, after application of the amounts in the Segregated Accounts, which shall be payable to Pay Enforcement Costs, etcthe Partnership or as otherwise designated in such notice. The Parent ------------------------------------------------ further agrees, as When the principal obligor Clawback Obligation becomes due and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty payable and the enforcement thereofObligor fails to fully and punctually pay and perform its Clawback Obligation, together with interest on amounts recoverable hereunder from the time when Funds or any of the Fund Limited Partners may make demand upon a Guarantor for the payment of such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountGuarantor's obligations hereunder.
(c) Waivers To the fullest extent permitted by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent Guarantor irrevocably waives promptness, diligenceacceptance hereof, presentment, demand, protest, notice benefit of acceptanceorder, notice of dishonor and any Obligations incurred and all other notices of notice not provided for herein, as well as any kind, all defenses which may requirement that at any time any action be available taken by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require Person against the marshalling of assets of the Company Obligor or any other entity or other Person primarily or secondarily liable with respect to any Person.
(d) The obligations of each Guarantor under this Agreement shall be unconditional and primary (as though such Guarantor were the maker of its Pro Rata Share of the ObligationsClawback Obligation), irrespective of the validity or enforceability of the Clawback Obligation, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released affected by any action taken under the Clawback Obligation in the exercise of any right or discharged, in whole or in partremedy therein conferred, or otherwise affected by (i) any failure or omission on the failure part of Holder to assert any claim the Funds or demand or the Fund Limited Partners to enforce any right given thereunder or remedy against the Company hereunder or any other entity remedy therein conferred, or other Person primarily by any failure or secondarily liable with respect to any omission on the part of the Obligations; (ii) Funds or the Fund Limited Partners to enforce any extensionsright given thereunder or hereunder or any remedy conferred thereby or hereby, compromise, refinancing, consolidation or renewals by any waiver of any Obligation; (iii) any change in the timeterm, place covenant, agreement or manner of payment of any condition of the Obligations Clawback Obligation or any rescissionsthis Agreement, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or by any other agreement evidencing, securing circumstance which may or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might be in any manner or to any extent vary the risk of any Guarantor hereunder.
(e) Except for the Parent or otherwise operate addition of Guarantors set forth in the following sentence and subject to the second sentence of Section 13.02(b), this Article 13 may not be amended except with the written consent of the Required Partners and the unanimous consent of the Guarantors. The Obligor hereby agrees that it will not admit any Person as a release or discharge Partner and the General Partner hereby agrees that it will not permit any Person to become entitled to any share of its distributions unless such Person shall have first executed a supplement hereto pursuant to which such Person agrees to become a Guarantor hereunder and to be bound by the Parent (other than the indefeasible payment in full, in cash, provisions of all of the Obligations), all of which may be done without notice to the Parentthis Article 13.
Appears in 2 contracts
Sources: Limited Partnership Agreement, Limited Partnership Agreement (Greenhill & Co Inc)
Guaranty. (a) Guaranty of Payment To induce Lender to make the Term Loan, Guarantor hereby, jointly and Performance. The Parent hereby guarantees ----------------------------------- to Holder severally, absolutely, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, the full and punctual payment when due (due, whether at stated maturitymaturity or earlier, by required pre-paymentreason of acceleration, by acceleration mandatory prepayment or otherwise), as well as the performanceotherwise in accordance with this Agreement, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of Borrower whether existing on the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand date hereof or notice of any nature, all of which are expressly waived by hereinafter incurred or created (the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company“Guaranteed Obligations”).
(b) Parent's Agreement Guarantor hereby waives and agrees not to Pay Enforcement Costsassert any defense, etc. The Parent ------------------------------------------------ further agreesand hereby agrees that its obligations under this section are irrevocable, as the principal obligor absolute and unconditional and shall not be discharged as a guarantor onlyresult of or otherwise affected, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including other than indefeasible payment in full of the allocated cost of staff counsel) incurred or expended by Holder in connection with the Guaranteed Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom Guarantor hereby unconditionally and irrevocably waives and agrees not to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective termsassert any claim, regardless of defense, setoff or counterclaim based on diligence, promptness, presentment, requirements for any law, regulation demand or order now or hereafter in effect in any jurisdiction affecting notice hereunder including any of such terms the following: (a) any demand for payment or the rights performance and protest and notice of Holder with respect thereto. The Parent waives promptness, diligence, protest; (b) any notice of acceptance; (c) any presentment, demand, protest, protest or further notice of acceptance, notice or other requirements of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable kind with respect to any of the Obligations, Guaranteed Obligation (including any accrued but unpaid interest thereon) becoming immediately due and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation payable; and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (vd) any other act notice in respect of any Guaranteed Obligation or omission which might in any manner part thereof, and any defense arising by reason of any disability or to any extent vary other defense of Borrower. Until the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment Guaranteed Obligations have been indefeasibly paid in full, in cashGuarantor further unconditionally and irrevocably agrees not to enforce or otherwise exercise any right of subrogation or any right of reimbursement or contribution or similar right against Borrower or any Guarantor by reason of any Loan Document or any payment made thereunder. No obligation of any Guarantor hereunder shall be discharged other than by complete performance.
(d) Guarantor, of all of and by its acceptance this guaranty, Lender, hereby confirm that it is their intention that this Guaranty and the Obligations)Guaranteed Obligations not constitute a fraudulent transfer or conveyance under any applicable laws. To effectuate the foregoing intention, all of which may Lender and Guarantor hereby irrevocably agree that the Guaranteed Obligations shall be done without notice limited to the Parentmaximum amount as will result in the Guaranteed Obligations not constituting a fraudulent transfer or conveyance under any applicable laws.
Appears in 2 contracts
Sources: Credit Agreement (Rentech Nitrogen Partners, L.P.), Credit Agreement (Rentech Inc /Co/)
Guaranty. (a) Guaranty of Payment Each Borrower hereby unconditionally and Performance. The Parent hereby irrevocably, guarantees ----------------------------------- to Holder the full Lender:
(i) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of the Obligations, including unpaid and accrued interest thereon, in each case when due and payable, all according to the terms of this Agreement, the Notes and the other Financing Documents;
(whether ii) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of all other sums and charges which may at stated maturityany time be due and payable in accordance with this Agreement, the Notes or any of the other Financing Documents;
(iii) the due and punctual performance by required pre-payment, by acceleration or otherwise), as well as the performance, other Borrowers of all of the indebtedness other terms, covenants and conditions contained in the Financing Documents; and
(iv) all the other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the CompanyBorrowers.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor obligations and not liabilities of each Borrower as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, under this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest Section 2.5.5 shall be reduced to such maximum permitted amount.
(c) Waivers by absolute and unconditional and joint and several, irrespective of the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective termsgenuineness, regardless validity, priority, regularity or enforceability of any lawthis Agreement, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms the Notes or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company Financing Documents or any other entity circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Borrower in its capacity as a guarantor expressly agrees that the Lender may, in its sole and absolute discretion, without notice to or further assent of such Borrower and without in any way releasing, affecting or in any way impairing the joint and several obligations and liabilities of such Borrower as a guarantor hereunder:
(i) waive compliance with, or any defaults under, or grant any other Person primarily indulgences under or secondarily liable with respect to any of the Financing Documents;
(ii) modify, amend, change or terminate any provisions of any of the Financing Documents;
(iii) grant extensions or renewals of or with respect to the Credit Facilities, the Notes or any of the other Financing Documents;
(iv) effect any release, subordination, compromise or settlement in connection with this Agreement, any of the Notes or any of the other Financing Documents;
(v) agree to the substitution, exchange, release or other disposition of the Collateral or any part thereof, or any other collateral for the Loan or to the subordination of any lien or security interest therein;
(vi) make advances for the purpose of performing any term, provision or covenant contained in this Agreement, any of the Notes or any of the other Financing Documents with respect to which the Borrowers shall then be in default;
(vii) make future advances pursuant to the Financing Agreement or any of the other Financing Documents;
(viii) assign, pledge, hypothecate or otherwise transfer the Commitment, the Obligations, the Notes, any of the other Financing Documents or any interest therein, all as and to the extent permitted by the provisions of this Agreement;
(ix) deal in all suretyship defenses generallyrespects with the other Borrowers as if this Section 2.5.5 were not in effect;
(x) effect any release, compromise or settlement with any of the other Borrowers, whether in their capacity as a Borrower or as a guarantor under this Section 2.5.5, or any other guarantor; and
(xi) provide debtor-in-possession financing or allow use of cash collateral in proceedings under the Bankruptcy Code, it being expressly agreed by all Borrowers that any such financing and/or use would be part of the Obligations.
(c) The obligations and liabilities of each Borrower, as guarantor under this Section 2.5.5, shall be primary, direct and immediate, shall not be subject to any counterclaim, recoupment, set off, reduction or defense based upon any claim that a Borrower may have against any one or more of the other Borrowers, the Lender, and/or any other guarantor and shall not be conditional or contingent upon pursuit or enforcement by the Lender of any remedies it may have against the Borrowers with respect to this Agreement, the Notes or any of the other Financing Documents, whether pursuant to the terms thereof or by operation of law. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder Lender shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder required to assert make any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to upon any of the Obligations; (ii) any extensionsBorrowers, compromiseor to sell the Collateral or otherwise pursue, refinancingenforce or exhaust its remedies against the Borrowers or the Collateral either before, consolidation concurrently with or renewals of any Obligation; (iii) any change after pursuing or enforcing its rights and remedies hereunder. Any one or more successive or concurrent actions or proceedings may be brought against each Borrower under this Section 2.5.5, either in the timesame action, place if any, brought against any one or manner more of payment the Borrowers or in separate actions or proceedings, as often as the Lender may deem expedient or advisable. Without limiting the foregoing, it is specifically understood that any modification, limitation or discharge of any of the Obligations liabilities or obligations of any one or more of the Borrowers, any other guarantor or any rescissionsobligor under any of the Financing Documents, waiversarising out of, compromiseor by virtue of, refinancingany bankruptcy, consolidation arrangement, reorganization or similar proceeding for relief of debtors under federal or state law initiated by or against any one or more of the Borrowers, in their respective capacities as borrowers and guarantors under this Section 2.5.5, or under any of the Financing Documents shall not modify, limit, lessen, reduce, impair, discharge, or otherwise affect the liability of each Borrower under this Section 2.5.5 in any manner whatsoever, and this Section 2.5.5 shall remain and continue in full force and effect. It is the intent and purpose of this Section 2.5.5 that each Borrower shall and does hereby waive all rights and benefits which might accrue to any other amendments guarantor by reason of any such proceeding, and the Borrowers agree that they shall be liable for the full amount of the obligations and liabilities under this Section 2.5.5, regardless of, and irrespective to, any modification, limitation or modifications discharge of the liability of any one or more of the Borrowers, any other guarantor or any obligor under any of the Financing Documents, that may result from any such proceedings.
(d) Each Borrower, as guarantor under this Section 2.5.5, hereby unconditionally, jointly and severally, irrevocably and expressly waives:
(i) presentment and demand for payment of the Obligations and protest of non-payment;
(ii) notice of acceptance of this Section 2.5.5 and of presentment, demand and protest thereof;
(iii) notice of any default hereunder or under the Notes or any of the other Financing Documents and notice of all indulgences;
(iv) notice of any increase in the amount of any portion of or all of the indebtedness guaranteed by this Section 2.5.5;
(v) demand for observance, performance or enforcement of any of the terms or provisions of this Note Section 2.5.5, the Notes or any of the other agreement evidencing, securing or otherwise executed Financing Documents;
(vi) all errors and omissions in connection with the Lender’s administration of all indebtedness guaranteed by this Section 2.5.5, except errors and omissions resulting from acts of bad faith;
(vii) any right or claim of right to cause a marshalling of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release assets of any entity one or more of the other person primarily or secondarily liable for any Obligation; or Borrowers;
(vviii) any other act or omission of the Lender which might in any manner or to any extent vary changes the scope of the risk as guarantor hereunder; and
(ix) all other notices and demands otherwise required by law which the Borrower may lawfully waive. Within ten (10) days following any request of the Parent Lender so to do, each Borrower will furnish the Lender and such other persons as the Lender may direct with a written certificate, duly acknowledged stating in detail whether or otherwise operate as a release not any credits, offsets or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice defenses exist with respect to the Parentthis Section 2.5.5.
Appears in 2 contracts
Sources: Financing and Security Agreement (Tvi Corp), Financing and Security Agreement (Tvi Corp)
Guaranty. The Guarantor does hereby absolutely and unconditionally, represent, warrant and guarantee to Lender that:
(a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- All Accounts from time to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration time reported to Lender as Eligible Accounts or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon otherwise listed or included on any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived Borrowing Base Certificate shall be genuine Accounts owned by the Parent. Payments by the Parent hereunder may Credit Parties and in all respects what they purport to be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holderand shall, in the manner case of Accounts, represent bona fide and at existing obligations of Account Debtors to the place of payment specified therefor for payments hereunder to be made by the CompanyCredit Parties.
(b) Parent's Agreement All reports, schedules, certificates, and other information from time to Pay Enforcement Coststime delivered or otherwise reported to Lender by Borrower, etc. The Parent ------------------------------------------------ further agreesincluding, as the principal obligor and not as a guarantor only, to pay to Holder, on demandwithout limitation, all reasonable costs financial statements, tax returns, and expenses (including court costs Borrowing Base Certificates and reasonable legal expenses, including the allocated cost of staff counsel) incurred all supporting information or expended by Holder documentation delivered in connection with the Obligationstherewith, this guaranty shall be bona fide, complete, correct, and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth accurate in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted all material respects and shall accurately and completely report all matters purported to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountcovered or reported thereby.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom Each Account from time to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect time identified to Lender in any jurisdiction affecting any Borrowing Base Certificate as an Eligible Account shall, as of the date of such terms or the rights of Holder with respect thereto. The Parent waives promptnessBorrowing Base Certificate, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made constitute an Eligible Account in accordance with the terms hereofof the Credit Agreement.
(d) The Guarantor may from time to time, sign and deliver reports (including, without limitation, those specifically mentioned above) or otherwise deliver any such information to Lender as Lender may request, and the Guarantor are duly authorized to deliver same to Lender on behalf of each Credit Party.
(e) All collections and proceeds of Eligible Accounts from time to time received by the Credit Parties, or any of its officers, employees, agents or other representatives, shall forthwith be delivered to Lender as required under the Credit Agreement.
(f) All Collateral: (i) will be owned by the Credit Parties and will be possessed by the Credit Parties or their agents, respectively and as applicable; (ivii) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or will not be subject to any extent vary lien or security interest except as permitted by Lender; and (iii) will be maintained only at the risk of locations designated in the Parent Credit Agreement or otherwise operate as a release or discharge of Security Agreement, unless the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentCredit Parties obtain Lender’s prior written consent.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Facility Agreement (Sunpeaks Ventures, Inc.), Senior Secured Revolving Credit Facility Agreement (Sunpeaks Ventures, Inc.)
Guaranty. The Guarantor unconditionally and irrevocably guarantees to the Company:
(a) Guaranty the due, prompt and complete payment by the Factor of Payment all amounts due under the Factoring Agreement, when and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all same shall become due and payable in accordance with the terms of the indebtedness Factoring Agreement, and
(b) the due, prompt and faithful performance of, and compliance with, all other undertakings of the Factor contained in the Factoring Agreement and in any other agreement or document executed by the Factor pursuant to the Factoring Agreement (the Factoring Agreement and other amounts owing under this Note (collectively, such agreements and documents being sometimes collectively hereinafter referred to as the "Operative Documents", and the amounts payable by the Factor under any of the Operative Documents, and all other obligations of the Factor thereunder, being sometimes collectively hereinafter referred to as the "Guaranteed Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing a guaranty of the full payment, performance and punctual payment and performance of all of the Obligations and not of their collectability only compliance and is in no way conditioned or contingent upon any requirement that Holder first attempt to collect from or enforce performance or compliance by the Factor or upon any of other event or condition whatsoever. If for any reason whatsoever the Obligations from Factor shall fail or be unable duly, punctually and fully to pay such amounts as and when the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, same shall become immediately due and payable or to Holderperform or comply with any other Guaranteed Obligation, without demand the Guarantor will forthwith pay or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may cause to be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made paid such amounts to the HolderCompany under the terms of the applicable Operative Document, in lawful money of the manner and United States, at the place of payment specified therefor for payments hereunder in such Operative Document, or perform or comply with such Guaranteed Obligations or cause such Guaranteed Obligations to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred performed or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereofcomplied with, together with interest (in the amounts and to the extent required of the Factor under such Operative Documents) on amounts recoverable hereunder any amount due and owing from the time when Factor. The Guarantor, promptly after demand, will reimburse the Company for all costs and expenses of collecting such amounts become due until paymentor otherwise enforcing this Agreement, whether before or after judgmentincluding, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoingwithout limitation, the Parent agrees to the provisions fees and expenses of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentcounsel.
Appears in 2 contracts
Sources: Interfactor and Subordination Agreement (Arbinet Thexchange Inc), Interfactor and Subordination Agreement (Arbinet Thexchange Inc)
Guaranty. (a) Guaranty In consideration of Payment Assignee's financing the purchase of the Equipment, each Guarantor hereby unconditionally, irrevocably and Performance. The Parent hereby guarantees ----------------------------------- to Holder the absolutely guarantees, jointly and severally, II re prompt and full payment and punctual payment performance when due (whether at stated maturity, by required pre-paymentdue, by acceleration or otherwise), as well as the performance, of all of Lessee's obligations under the indebtedness and other amounts owing under this Note Lease from time to time (collectively, the "ObligationsLease"), without offset or other deduction; consents, without notice, to all acts and omissions that would or might otherwise impair or affect this Guaranty or on which this Guaranty might be conditioned including all such Obligations which would become due but for the operation without limitation extension or modification of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absoluteLease, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company replacement or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance release of any of the ObligationsEquipment, and exercise or delay in exercise or waiver of any right or remedy of Assignee; and agrees to pay on demand each cost and expense of Assignee in enforcing this Guaranty including without limitation attorneys' fees (including infernal counsel's fees) and disbursements. This is a guaranty of payment not collection. The Assignee need not exhaust its remedies against any other obligor or guaranfor or resort to the Equipment before enforcing this Guaranty. Guarantor also waives presentment, demand for payment, protest, and notice of dishonor, protest and non-payment. if ny am unt paid Assignee un er the Lease must be returned pursuant to any bankruptcy law, this Guaranty shall be automatically reinstated until all Lessees obligations to ~ i II. Guaranty shall be governed by the internal laws of the Parent hereunder with respect to such Obligations state in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice which the Lessee is incorporated as of any nature, all of which are expressly waived by the Parentdate :f this Lease. Payments by the Parent hereunder may be required by Guarantor Signature ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ on any number Guarantor Signature ACKNOWLEDGMENT STATE OF ~ ~ ---~-- SS: COUNTY OF _____ - ~ _~. On the day of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner year 20_ , before me personally came __________ -. to me known and at the place of payment specified therefor for payments hereunder known to me to be made by the Company.
(bperson(s) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as described in and who executed the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligationsabove instrument, and all suretyship defenses generally. Without limiting ~he (they jointly and severally) acknowledged to me that _he (they) executed the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentsame.
Appears in 2 contracts
Sources: Equipment Lease (Compliance Systems Corp), Equipment Lease (Compliance Systems Corp)
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Notes or the Note Purchase Agreement (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect from the Issuer 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 Issuer shall fail so to pay any of such Guaranteed Obligations when due, each Guarantor agrees to pay the Obligations from same when due to the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holderholders entitled thereto, without demand demand, presentment, protest or notice of any naturekind, all in lawful money of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number United States of occasions. All payments by the Parent hereunder shall be made America, pursuant to the Holder, requirements for payment specified in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty Notes and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth Note Purchase Agreement. Each default in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment 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 holder harmless from and against any loss, cost or expense (including attorneys’ fees) which such holder may incur as a result of (x) any rescissionsbreach by such Guarantor, waivers, compromise, refinancing, consolidation by any other Guarantor or other amendments by the Issuer or modifications the Parent of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the terms Notes or the Note Purchase Agreement, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the validity or enforceability of this Guaranty Agreement, the Notes or the Note Purchase Agreement and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Guaranty Agreement; provided that the foregoing indemnity obligations shall not expand the scope of the Guaranteed Obligations hereunder; provided further that, for the avoidance of doubt, the scope of costs and expenses covered by this sentence shall be no more than the costs and expenses reimbursable under the Note Purchase Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with each other Guarantor and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note Purchase Agreement. Notwithstanding the foregoing provisions or any other agreement evidencingprovision of this Guaranty Agreement, securing or otherwise executed in connection with if at any of time the Guaranteed Obligations made in accordance with exceed the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.Maximum Guaranteed Amount determined as
Appears in 2 contracts
Sources: Note Purchase Agreement (CoreSite Realty Corp), Note Purchase Agreement (CoreSite Realty Corp)
Guaranty. In order to induce to now or hereafter make advances, loans, extend its credit to or enter into security agreement with EVERGOOD PRODUCTS CORPORATION, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION INC. (aindividually and collectively "Debtor") Guaranty and knowing that Trefoil will rely upon this guaranty, the undersigned and each of Payment them jointly and Performance. The Parent hereby guarantees ----------------------------------- to Holder severally guarantee the full due payment and punctual payment when due (whether at stated maturityperformance by said Debtor described in said financing agreement, by required pre-paymentor in any supplement thereto, by acceleration or otherwise)any other transaction or agreement, as well as the performance, due payment of all of the indebtedness and other amounts owing under this Note (collectivelyobligations which said Debtor may at any time owe to Trefoil, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code however created; and the operation of (S)(S)502(b) undersigned hereby indemnify Trefoil, and 506(b) of covenant to hold it harmless against all obligations, demands, losses or liabilities, by whomsoever asserted, suffered, incurred or paid by Trefoil as a result of, or in any way arising out of, or following, or consequential to transactions under the Federal Bankruptcy Codeaforesaid security agreement or any other agreement. This guaranty is an shall be absolute, unconditional continuing, unconditional, and continuing guaranty of unlimited. Trefoil shall be under no obligation to proceed first against the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company Debtor, or resort to against any collateral security which Trefoil may hold, before proceeding against the undersigned hereunder. The undersigned agree that any collateral held as security by Trefoil, whether under an agreement with the Debtor, or pursuant to this guaranty, may be sold at public or private sale, and the undersigned further agree that Trefoil shall have the right to bid at such sale. The undersigned agree to indemnify and save Trefoil harmless for any costs and expenses that Trefoil shall have the right to bid at such sale. The undersigned agree to indemnify and save Trefoil whether under agreement with the Debtor or the undersigned, and they further agree to pay all attorneys fees agreed to by the Debtor, and the reasonable attorneys fees incurred in connection with enforcement of this guaranty agreement, which the parties shall be a sum equal to 15% of the moneys due Trefoil upon placement of the claim with such attorney. The undersigned agree: that this guaranty shall not be impaired by any modification to which the parties to said security agreement may hereafter agree, nor by any modification, release or other means of obtaining payment. Should the Company default in the payment or performance alteration of any of the Obligationsobligations hereby guaranteed, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any naturesecurity therefor, or failure to perfect and security interest, to all of which are expressly waived by the Parent. Payments by the Parent undersigned hereby consent; that their liability hereunder is direct and unconditional and may be required enforced without requiring Trefoil first to any other right, remedy or security; and that this guaranty shall continue in force until Secured Party shall receive 30 days prior written notice by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made registered mail revoking it only as to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etcfuture transactions. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost undersigned waive: notice of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 acceptance hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, adverse change in Debtor's financial condition; the right to a jury trial in any action hereunder; presentment and protest of any instrument and notice thereof; notice of any Obligations incurred default; and all other notices to which they might otherwise be entitled. As security, they hereby assign to Trefoil all claims of any kindnature which they, all defenses which or any of them, may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter have against Debtor. All actions or proceedings arising directly or indirectly on account of this guaranty agreement shall be litigated only in effectcourts having situs within the State of New York and each guarantor for himself hereby consents to the jurisdiction of any Local, State or Federal Court located within the State of New York and each guarantor for himself waives personal service of any right and all process upon him and consents that all such service of process be made by certified mail, return receipt requested directed to require such guarantor at the marshalling address set forth below or the home address of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligationssuch guarantor, if different, and service so made shall be deemed complete three days after the same shall be posted. This guaranty, all suretyship defenses generally. Without limiting acts and transactions hereunder, and the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation rights and agrees that the obligations of the Parent hereunder parties hereto, shall be governed, construed and interpreted according to the laws of the State of New York. This guaranty cannot be changed or discharged orally, nor shall the same be terminated by death of any guarantor, in which event deceased guarantor's estate shall be bound by the obligations hereunder. Release of any guarantor, or the Debtor herein, shall not be released or discharged, in whole or in part, or otherwise affected by (i) affect the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any obligations hereunder of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentremaining guarantors.
Appears in 2 contracts
Sources: Security Agreement (Evergood Products Corp), Security Agreement (Evergood Products Corp)
Guaranty. Guarantor irrevocably and unconditionally guarantees to each Holder the due and punctual payment in full of all of the following (the “Guaranteed Obligations”): (a) Guaranty all Revolver Obligations, including all principal of, interest on (including interest accruing after the filing of Payment any petition in bankruptcy, or 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under or pursuant to, the full Loan Agreement and/or Revolver Note when and punctual payment when as due and payable (whether at stated maturity, by required pre-paymentor optional prepayment, by acceleration or otherwise); and (b) all fees, as well as the performanceexpenses, of all of the indebtedness indemnities and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations sums which would become due but for to the operation of the automatic stay Holder or Collateral Agent under or pursuant to (S)362(athe Revolver Note, Loan Agreement, Agency Agreement or any other Revolver Document. The Guarantor’s liability hereunder is joint and several with any other Person(s) of who may guarantee any Guaranteed Obligations. The guaranty in the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty preceding paragraph is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon conditional or contingent on any requirement that Holder first attempt to collect from any of the other Obligor any Guaranteed Obligations from or on any other action, occurrence or circumstance whatsoever. If the Company or resort fails to pay any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Guaranteed Obligations, Guarantor agrees to pay the obligations of same when due to the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to HolderCollateral Agent and/or Holder entitled thereto, without demand demand, presentment, protest or notice of any naturekind, all in lawful money of which are expressly waived by the ParentUnited States of America, pursuant to the requirements for payment specified in the relevant Revolver Documents. Payments by the Parent hereunder Each default in payment of any Guaranteed Obligations will give rise to a separate cause of action and separate suits may be required by ▇▇▇▇▇▇ on any number brought as each cause of occasionsaction arises. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and Guarantor agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by Revolver Note may (ibut need not) the failure of Holder make reference to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentGuaranty Agreement.
Appears in 2 contracts
Sources: Guaranty Agreement (Global Water Resources, Inc.), Guaranty Agreement (Global Water Resources, Inc.)
Guaranty. (a) Guaranty of Payment and Performance. The Parent U.S. Guarantor hereby guarantees ----------------------------------- to Holder the Bank the full and punctual prompt payment when due (whether at stated maturity, by required pre-paymentdeclaration, by acceleration acceleration, demand or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all indebtedness, liabilities and other obligations of the Obligations Company to the Bank under or in connection with the Loan Agreement dated as of August 8, 1997 (the "LOAN AGREEMENT"), between the Company and the Bank (the "OBLIGATIONS"). The U.S. Guarantor acknowledges and agrees that, with respect to all obligations to pay money, such guaranty shall be a guaranty of payment and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from collection. If the Company or resort to any collateral security or other means of obtaining payment. Should the Company shall default in the payment or due and punctual performance of any of the Obligations, Obligations or in the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due full and payable to Holder, without demand or notice timely payment of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, amounts owed in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, the U.S. Guarantor will forthwith perform or cause to be performed such Obligations and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions will forthwith make full payment of any instrument evidencing, securing or otherwise executed in connection amount due with any Obligation respect thereto as its sole cost and agrees that the expense. The liabilities and obligations of the Parent hereunder U.S. Guarantor to the Bank pursuant to this Section 1 shall be unconditional and irrevocable and shall not be released conditioned or discharged, in whole or in part, or otherwise affected by (i) contingent upon the failure pursuit of Holder to assert any claim or demand or to enforce any right or remedy remedies against the Company or any other person or entity ("Person"). The U.S. Guarantor hereby waives any right, whether legal or other Person primarily equitable, statutory or secondarily liable non-statutory, to require the Bank to proceed against or take any action against or pursue any remedy with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note Company or any other agreement evidencingPerson or make presentment or demand for performance or give any notice of nonperformance before the Bank may enforce rights against the U.S. Guarantor hereunder and, securing to the fullest extent permitted by law, any other defenses or otherwise executed in connection with any benefits that may be derived from or afforded by applicable law limiting the liability of the Obligations made in accordance or exonerating guarantors or sureties, or which may conflict with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk this Section 1. The unconditional obligation of the Parent U.S. Guarantor hereunder will not be affected, impaired or otherwise operate as released by any extension, waiver, amendment or thing whatsoever which would release a release guarantor or discharge of the Parent surety (other than the indefeasible payment in full, in cash, of all of the Obligationsperformance), all of which may be done without notice to the Parent.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment Each Guarantor, jointly and Performance. The Parent hereby severally, irrevocably, absolutely and un-conditionally guarantees ----------------------------------- as a primary obligor and not merely as surety to Holder the Secured Creditors the full and punctual prompt payment when due (whether at the stated maturity, by required pre-paymentprepayment, by acceleration declaration, acceleration, demand or otherwise) of (x) the principal of, premium, if any, and interest on the Notes issued by, and the Loans made to, each of the Borrowers under the Loan Agreement, and (y) all other obligations (including, without limitation, obligations which, but for the automatic stay under Section 362(a) of the Bankruptcy Code, would become due), as well as liabilities and indebtedness owing by each of the performanceBorrowers to the Secured Creditors under each Loan Document to which the Borrower is a party (including, without limitation, indemnities, fees and interest thereon (including, without limitation, any interest accruing after the commencement of any bankruptcy, insolvency, receivership or similar proceeding at the rate provided for in the Loan Agreement, whether or not such interest is an allowed claim in any such proceeding)), whether now existing or hereafter incurred under, arising out of or in connection with each such Loan Document and the due performance and compliance by each of the Borrowers with all of the terms, conditions, covenants and agreements contained in all such Loan Documents (all such principal, premium, interest, liabilities, indebtedness and other amounts owing obligations under this Note clause (collectively, the "Obligations"a), including all being herein collectively called the “Guaranteed Obligations”). Each Guarantor understands, agrees and confirms that the Secured Creditors may enforce this Guaranty up to the full amount of the Guaranteed Obligations against such Obligations which would become due but Guarantor without proceeding against any other Guarantor, either Borrower, or against any security for the operation Guaranteed Obligations, or under any other guaranty covering all or a portion of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy CodeGuaranteed Obligations. This guaranty Guaranty is an absolute, unconditional and continuing a guaranty of the full and punctual prompt payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Companycollection.
(b) Parent's Agreement to Pay Enforcement CostsAdditionally, etc. The Parent ------------------------------------------------ further agreeseach Guarantor, as jointly and severally, unconditionally, absolutely and irrevocably, guarantees the principal obligor payment of any and all Guaranteed Obligations whether or not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred due or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers payable by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that Borrowers upon the Obligations will be paid and performed strictly occurrence in accordance with their respective terms, regardless respect of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment either Borrower of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any events specified in Section 11.05 of the terms or provisions of this Note or any other agreement evidencingLoan Agreement, securing or otherwise executed in connection with any of the and unconditionally, absolutely and irrevocably, jointly and severally, promises to pay such Guaranteed Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentSecured Creditors, or order, on demand.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment Guarantor agrees to take all actions necessary to cause Parent and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇M▇▇▇▇▇ on any number Sub to perform all of occasionsthe payment obligations under this Agreement and the Escrow Agreement (the “Guaranteed Obligations”). All payments by the Parent hereunder shall be made Guarantor unconditionally and irrevocably guarantees as a primary obligation to the HolderCompany, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty Company Securityholders and the enforcement thereofRepresentative the full, together with interest on amounts recoverable hereunder from the time when such amounts become due until paymentcomplete, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers and punctual performance by the Parent; P▇▇▇▇▇▇'s Freedom ▇ and Merger Sub of such Guaranteed Obligations. Any failure of Parent or Merger Sub to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid first perform or comply with any such Guaranteed Obligations, and performed strictly in accordance with their respective terms, regardless any breach of any lawrepresentation or warranty of Parent and Merger Sub contained herein, regulation or order now or hereafter in effect in any jurisdiction affecting any shall be deemed to be a breach of such terms Guaranteed Obligations or the rights of Holder with respect theretosuch representation or warranty, by Guarantor. The Parent Guarantor waives promptness, diligence, presentment, demanddemand of performance, protest, notice of acceptance, notice filing of any Obligations incurred and 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 effectclaim, any right to require the marshalling of assets of the Company any proceeding first against Parent or any other entity or other Person primarily or secondarily liable with respect to any of the ObligationsMerger Sub, protest, notice and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed demands whatsoever in connection with any Obligation and the performance of its obligations set forth in this Section 5.15. Guarantor further agrees that the obligations which it guarantees performance of the Parent hereunder shall not under this Section 5.15 may be released amended, modified, assigned, extended or dischargedrenewed, in whole or in part, and it will remain bound by this guarantee notwithstanding any such amendment, modification, assignment, extension, or otherwise renewal of any such obligation that is made in accordance with Section 8.4. The obligations of Guarantor hereunder shall not be affected by (i) the failure of Holder the Company to assert any claim or demand or to enforce any right or remedy against the Company Parent or Merger Sub or any other entity guarantor under the provisions of this Agreement or any other Person primarily agreement or secondarily liable otherwise, (ii) any extension or renewal of any provision hereof or thereof, (iii) the failure of the Company to obtain the consent of Guarantor with respect to any of the Obligations; (ii) any extensionsrescission, waiver, compromise, refinancing, consolidation amendment or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications modification of any of the terms or provisions of this Note Agreement or of any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the additionrelease, substitution exchange, waiver or release foreclosure of any entity security held for the Guaranteed Obligations or other person primarily any of them. Guarantor unconditionally and irrevocably waives each and every defense and setoff of any nature which under the principle of guaranty or secondarily liable for any Obligation; otherwise would operate to impair or (v) any other act or omission which might diminish in any manner way the obligations of Guarantor under this Section 5.15 other than any defense or setoff of Parent or Merger Sub to which Guarantor is entitled.
(b) If any extent vary payment to the risk Company Securityholders, or any discharge given by the Company Securityholders, is avoided or reduced as a result of insolvency or any similar event, the liability of Parent, Merger Sub and Guarantor shall continue as if the payment, discharge, avoidance or reduction had not occurred and the Company Securityholders, as applicable, shall be entitled to recover the value or amount of the Parent applicable security or otherwise operate as payment.
(c) Notwithstanding anything herein to the contrary, each Company Securityholder shall be a release or discharge third party beneficiary of this Section 5.15 with respect to all such rights, benefits and privileges and each of the Parent (other than Company Securityholders and the indefeasible payment in full, in cash, Representative on behalf of the Company Securityholders shall each have all of the Obligations)rights and benefits of a third party beneficiary, all including an independent right of which may action to enforce such rights, benefits and privileges directly, without the consent or joinder of any other Person, against Guarantor, and such rights, benefits and privileges (including exculpatory rights and rights to indemnification) shall not be done modified or amended without notice to the Parentconsent of the Representative on behalf of the Company Securityholders.
Appears in 1 contract
Guaranty. From and after the date hereof until the termination of this Guaranty in accordance with Section 10 hereof, the Guarantor hereby irrevocably and unconditionally guarantees to the Beneficiaries, and each Beneficiary's respective successors and permitted assigns, the full and prompt payment when due of: (a) Guaranty all of Payment the funding, contribution, indemnity and Performance. The Parent hereby guarantees ----------------------------------- payment obligations of the NRG Member described in Section 2 of the NRG Cash Grant Recapture Indemnity Agreement (the "NRG Cash Grant Obligations") and (b) any payment or other obligation of Borrower arising out of all or any portion of a 1603 Grant received by or for the benefit of Borrower in respect of the Project being “recaptured” or disallowed by the Treasury because of (i) any direct or indirect transfer by EFS Desert Sun, LLC, a Delaware limited liability company ("GE Member") of its Equity Interests in Borrower to Holder a Disqualified Person, but only to the full extent that at the time of such transfer, GE Member was an indirect or beneficial owner of Borrower and punctual payment (ii) any misstatements, misrepresentations or inaccuracies, in each case as to matters of fact, in respect of GE Member or any direct or indirect owner of GE Member made by Borrower in any 1603 Grant Application ("GE Cash Grant Obligations", and together with the NRG Cash Grant Obligations, the "Cash Grant Obligations"), in each case when the same shall become due (and payable, whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as in each case after any applicable grace periods or notice requirements, according to the performance, of all terms of the indebtedness NRG Cash Grant Recapture Indemnity Agreement; provided, however, that (A) the Guarantor shall not be liable to make any payment until twenty Business Days following receipt by the Guarantor of written notice from any Beneficiary that payment of an amount is due thereunder (a "Demand Notice") and (B) no Beneficiary may deliver any Demand Notice or otherwise make any demand or claim against Guarantor under this Guaranty without first having demanded payment from the NRG Member in respect of the NRG Cash Grant Obligations. Any Beneficiary may deliver a Demand Notice under this Guaranty. The Guarantor shall make payments under this Guaranty to an account as specified in Section 2(c) of the NRG Cash Grant Recapture Indemnity Agreement (or as otherwise provided in the NRG Cash Grant Recapture Indemnity Agreement). With respect to any claim, action or proceeding against the Guarantor in connection with this Guaranty, Guarantor shall be entitled to assert only those defenses, claims, setoffs and other amounts owing under this Note rights which the NRG Member would be able to assert if such claim, action or proceeding were to be asserted or instituted against the NRG Member based upon the NRG Cash Grant Recapture Indemnity Agreement (collectivelysuch defenses, claims, setoffs and other rights, the "ObligationsNRG Member Rights"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Guaranty. (a) Guaranty of Payment Each Partner and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all each member of the indebtedness and other amounts owing General Partner (each, together with any Person who may hereafter agree to become a guarantor under this Note (Agreement by signing a written instrument expressly agreeing to be so bound, each a "Guarantor," and collectively, the "ObligationsGuarantors")) hereby unconditionally and irrevocably guarantees severally (and not jointly) the full payment in cash, including all when due, of such Obligations which would become due but for the operation Guarantor's Pro Rata Share of the automatic stay pursuant Clawback Obligation, and if for any reason the Partnership (the "Obligor") shall fail fully and punctually to (S)362(a) pay the Clawback Obligation, each of the Federal Bankruptcy Code Guarantors shall pay its Pro Rata Share of such Clawback Obligation; provided that (i) the payment obligation of each Guarantor shall be reduced by any amounts applied from such Guarantor's Segregated Account and (ii) the operation of amount payable by each Guarantor shall not exceed the aggregate Carried Interest distributions received by such Guarantor directly or indirectly from the Partnership (S)(S)502(bor held in such Guarantor's Segregated Account) and 506(bless the deemed income tax liability (calculated based on the Tax Percentage) of the Federal Bankruptcy Codeon income allocated with respect to such Carried Interest distributions. This guaranty Agreement is an absolute, unconditional and unconditional, continuing guaranty guarantee of the full and punctual payment and performance of all of the Obligations and not of their collectability only collection, and is in no way conditioned or contingent upon any requirement that Holder first attempt to collect from the Obligor, enforce performance by the Obligor or on any other condition or contingency.
(b) Each guaranty pursuant to paragraph (a) above is expressly for the benefit of the Obligations from Funds and the Company limited partners of the Funds (the "Fund Limited Partners") and shall not be impaired, discharged or resort terminated by any other act or omission that may, in accordance with applicable law, affect the enforceability of a guaranty, and shall not be affected by the bankruptcy, insolvency or inability to any collateral security pay of the Obligor, a Guarantor or other means of obtaining payment. Should the Company default in the payment or performance of any of other party.
(c) Promptly following the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be determination that a contribution is required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the CompanyObligor pursuant to Section 10.04(b) of the Fund Partnership Agreement, the Obligor shall notify the Guarantors of each Guarantor's Pro Rata Share of the amount of the Clawback Obligation, after application of the amounts in the Segregated Accounts, which shall be payable to the Partnership or as otherwise designated in such notice. When the Clawback Obligation becomes due and payable and the Obligor fails to fully and punctually pay and perform its Clawback Obligation, the Funds or any of the Fund Limited Partners may make demand upon a Guarantor for the payment of such Guarantor's obligations hereunder.
(bd) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as To the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended fullest extent permitted by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent Guarantor irrevocably waives promptness, diligenceacceptance hereof, presentment, demand, protest, notice benefit of acceptanceorder, notice of dishonor and any Obligations incurred and all other notices of notice not provided for herein, as well as any kind, all defenses which may requirement that at any time any action be available taken by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require Person against the marshalling of assets of the Company Obligor or any other entity or other Person primarily or secondarily liable with respect to any Person.
(e) The obligations of each Guarantor under this Agreement shall be unconditional and primary (as though such Guarantor were the maker of its Pro Rata Share of the ObligationsClawback Obligation), irrespective of the validity or enforceability of the Clawback Obligation, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released affected by any action taken under the Clawback Obligation in the exercise of any right or discharged, in whole or in partremedy therein conferred, or otherwise affected by (i) any failure or omission on the failure part of Holder to assert any claim the Funds or demand or the Fund Limited Partners to enforce any right given thereunder or remedy against the Company hereunder or any other entity remedy therein conferred, or other Person primarily by any failure or secondarily liable with respect to any omission on the part of the Obligations; (ii) Funds or the Fund Limited Partners to enforce any extensionsright given thereunder or hereunder or any remedy conferred thereby or hereby, compromise, refinancing, consolidation or renewals by any waiver of any Obligation; (iii) any change in the timeterm, place covenant, agreement or manner of payment of any condition of the Obligations Clawback Obligation or any rescissionsthis Agreement, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or by any other agreement evidencing, securing circumstance which may or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might be in any manner or to any extent vary the risk of any Guarantor hereunder.
(f) Except for the Parent or otherwise operate addition of Guarantors set forth in the following sentence, this Article 13 may not be amended except with the written consent of the Required Limited Partners and the unanimous consent of the Guarantors. The Obligor hereby agrees that it will not admit any Person as a release or discharge Partner and the General Partner hereby agrees that it will not permit any Person to become entitled to any share of its distributions unless such Person shall have first executed a supplement hereto pursuant to which such Person agrees to become a Guarantor hereunder and to be bound by the Parent (other than the indefeasible payment in full, in cash, provisions of all of the Obligations), all of which may be done without notice to the Parentthis Article 13.
Appears in 1 contract
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Shelf Agreement or any other instrument referred to therein, including (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Shelf Agreement. Each default in payment 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 Shelf Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including reasonable attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, or the Guaranteed Obligations, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the validity or enforceability of this Guaranty Agreement, the Notes, the Shelf Agreement or any rescissions, waivers, compromise, refinancing, consolidation other instrument referred to therein and (z) enforcing or other amendments defending (or modifications of any of determining whether or how to enforce or defend) the terms or provisions of this Note Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Shelf Agreement. Notwithstanding the foregoing provisions or any other agreement evidencingprovision of this Guaranty Agreement, securing or otherwise executed in connection with any the Purchasers (on behalf of the Obligations made in accordance with the terms hereof; (ivthemselves and their successors and assigns) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.and each
Appears in 1 contract
Guaranty. (a) Guaranty of Payment Each Guarantor hereby jointly and Performance. The Parent hereby severally, irrevocably and -------- unconditionally, as primary obligors and not merely as sureties, absolutely guarantees ----------------------------------- to Holder the full and punctual payment or performance when due (due, whether at stated maturity, by required pre-paymentprepayment, by acceleration declaration, acceleration, demand or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note Obligations of the Guaranteed Borrower (collectively, the "Guaranteed ---------- Obligations"), including all such Obligations which in respect of amounts that would become due ----------- but for the operation of the automatic stay pursuant to (S)362(aunder Section 362(a) of the Federal U.S. Bankruptcy Code and Code, the operation of (S)(S)502(bSections 502(b) and 506(b) of the Federal U.S. Bankruptcy CodeCode or the operation of any comparable provisions of laws of countries other than the United States; provided, however, that each Guarantor -------- ------- shall be liable under this Guaranty for the maximum amount of such liability that can be hereby incurred without rendering this Guaranty, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance, fraudulent transfer or other applicable law, and not for any greater amount. This guaranty is an absolute, unconditional and continuing Guaranty constitutes a guaranty of the full and punctual payment and performance of all of the Obligations when due and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligationscollection, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and each Guarantor specifically agrees that the obligations of the Parent hereunder it shall not be released necessary or dischargedrequired that the Post-Petition Agent or any Lender exercise any right, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy whatsoever against the Company Guaranteed Borrower (or any other entity Person) before or as a condition to the obligations of the Guarantor hereunder. The Post-Petition Agent or any Lender may permit the indebtedness of the Guaranteed Borrower to the Post-Petition Agent or any Lender to include indebtedness other Person primarily than the Guaranteed Obligations, and may apply any amounts received from any source, other than from a Guarantor, to that portion of the Guaranteed Borrower's indebtedness to the Post-Petition Agent or secondarily liable with respect to any Lender which is not a part of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.
Appears in 1 contract
Sources: Guaranty (Apw LTD)
Guaranty. (a) Guaranty of Payment Guarantor hereby unconditionally and Performance. The Parent hereby irrevocably guarantees ----------------------------------- to Holder Bank the full and punctual prompt payment of the Obligations, when due (and as the same shall become due, whether at the stated maturity, by required pre-paymentmaturity thereof, by acceleration or otherwise). The obligations of Guarantor hereunder shall arise absolutely and unconditionally upon the execution and delivery by Borrower of the Notes.
(b) This Guaranty and the obligations of Guarantor hereunder shall be absolute and unconditional irrespective of any other agreement or instrument to which Guarantor is a party and shall remain in full force and effect until the entire principal of and interest on the Obligations guaranteed hereby shall have been paid notwithstanding, without limitation, the cessation to do business as well as a going concern, the liquidation or the dissolution, of Guarantor. This Guaranty shall constitute a guaranty of payment and not of collection. The Obligations guaranteed hereby and payment hereunder shall not be subject to rescission or repayment pursuant to any bankruptcy, insolvency, arrangement, reorganization, rehabilitation, moratorium, receivership or similar proceeding involving or affecting Borrower. Such Obligations and this Guaranty shall not be affected, modified or impaired upon the happening from time to time of any event, including without limitation any one or more of the following, whether or not such event shall occur with notice to, or the consent of, Guarantor:
(i) the waiver, surrender, compromise, extension of time for payment or other performance, unenforceability, settlement, discharge, amendment, modification, subordination, release or termination of the Notes or any or all of the Obligations guaranteed hereby, other than a discharge, release or termination thereof by the full and timely payment of all of the indebtedness and other amounts owing under Obligations guaranteed hereby;
(ii) any failure, omission, delay or lack of diligence on the part of the Bank in the enforcement, assertion or exercise of any right, power or remedy conferred on the Bank in the Notes, the Loan Agreement, the Other Agreements (as defined in the Loan Agreement) or this Note Guaranty (collectively, the "ObligationsLoan Documents");
(iii) voluntary or involuntary liquidation, including dissolution, sale or other disposition of all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of or substantially all of the Obligations assets and not liabilities, marshalling of their collectability only assets and is liabilities, receivership, insolvency, assignment for the benefit of creditors, bankruptcy, reorganization, rehabilitation, arrangement, adjustment, composition or other similar proceedings of or affecting Borrower or the Guarantor, or any of the properties of any of them, or any allegation or contest of the validity of any of the Loan Documents in no way conditioned upon any requirement that Holder first attempt to collect proceeding; or
(iv) the exchange, substitution, surrender, release or impairment of all or any security or other guaranty for the payment, performance or observation of any of the Obligations from guaranteed hereby. No payments by Guarantor pursuant to the Company or resort provisions hereof to Bank shall entitle Guarantor to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance out of any of property or assets held by or pledged to Bank under or pursuant to the ObligationsNotes, the obligations Loan Agreement, the Other Agreements or otherwise, except after payment in full of the Parent hereunder with respect to such all Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountguaranteed hereby.
(c) Waivers Guarantor waives notice of the making of loans or advances under the Notes and notice from Bank of acceptance and reliance on this Guaranty. Guarantor also waives any right it may have to (i) require Bank to proceed against Borrower under the Notes, the Loan Agreement, the Other Agreements or otherwise, (ii) require Bank to proceed against or exhaust any security conveyed or granted by Borrower, Guarantor or any other person, firm or corporation, or (iii) require Bank to pursue any other remedy available to or otherwise within the Parent; ▇▇▇▇▇▇'s Freedom power of Bank.
(d) Guarantor hereby agrees to Actmake all payments at any time due and payable under this Guaranty directly to Bank to be applied as determined by Bank as payment of Obligations guaranteed hereby. The Parent No setoff, counterclaim, reduction or diminution of any Obligation or any defense of any kind of nature (other than full and timely payment by Guarantor of its Obligations hereunder) which Guarantor may have or assert against Bank shall be available hereunder to Guarantor against Bank.
(e) Guarantor agrees ---------------------------------------------- that to deliver to Bank (i) as soon as available and in any event within thirty (30) days after the Obligations will be paid end of each calendar quarter beginning with the quarter ending March 31, 1998, an internally prepared balance sheet of Guarantor as at the end of such quarter and performed strictly the related statements of net earnings and stockholders' equity and statements of cash flows of Guarantor for such quarter and for the portion of the fiscal year ended at the end of such quarter, set forth in each case in comparative form the figures for the corresponding quarter and the corresponding portion of the previous fiscal year, all in reasonable detail and certified (subject to normal year-end adjustments) as to fairness of presentation, in accordance with their respective termsGAAP, regardless of any lawby the principal financial officer or manager as applicable, regulation or order now or hereafter in effect and (ii) as soon as available and in any jurisdiction affecting any event within ninety (90) days after the end of each fiscal year of Guarantor, a balance sheet and the related statements of net earnings and stockholders' equity and statements of cash flows of Guarantor as of the end of such terms fiscal year, fairly and accurately presenting the financial condition of Guarantor as at such date and the results of operations of Guarantor for such fiscal year and setting forth in each case in comparative form the corresponding figures for the corresponding period of the preceding fiscal year, all in reasonable detail, prepared in accordance with GAAP consistently applied, and audited by Ernst & Young or the rights such other independent certified public accountants acceptable to Bank and accompanied by an unqualified opinion of Holder with respect thereto. The Parent waives promptnesssuch accountants;
(f) Guarantor agrees to pay all costs, diligencelegal expenses, presentment, demand, protest, notice and reasonable attorneys' and paralegals' fees of acceptance, notice of any Obligations incurred and all other notices of any every kind, all defenses which may be available paid or incurred by virtue of any valuation, stay, moratorium law or other similar law now or hereafter Bank in effect, any right endeavoring to require collect the marshalling of assets of the Company Obligations or any other entity part thereof, or other Person primarily or secondarily liable in enforcing its rights with respect to the Collateral (as defined in Loan Agreement), or in enforcing this Guaranty, or in defending against any defense, counterclaim, setoff or crossclaim based on any act of commission or omission by Bank with respect to the Obligations, Collateral or any claim for repayment for any amount received by Bank in payment of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity part thereof, whether received by Borrower, Guarantor or other Person primarily or secondarily liable with respect to any otherwise, promptly on demand of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentBank.
Appears in 1 contract
Sources: Guaranty (Heartland Technology Inc)
Guaranty. The Guarantor hereby irrevocably and unconditionally guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make‑Whole Amount, if any, Modified Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Note Agreement or any other instrument referred to therein, including (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity guarantor of the Notes or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting the generality Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment 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. The Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement. The Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by the Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Guaranty Agreement. The Guarantor hereby acknowledges and agrees that the Guarantor’s liability hereunder is joint and several with any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note Agreement. Notwithstanding the foregoing provisions or any other agreement evidencingprovision of this Guaranty Agreement, securing or otherwise executed in connection the Purchasers (on behalf of themselves and their successors and assigns) and the Guarantor hereby agree that if at any time the Guaranteed Obligations exceed the Maximum Guaranteed Amount determined as of such time with any regard to the Guarantor, then this Guaranty Agreement shall be automatically amended to reduce the Guaranteed Obligations to the Maximum Guaranteed Amount. Such amendment shall not require the written consent of the Guarantor or any holder and shall be deemed to have been automatically consented to by the Guarantor and each holder. The Guarantor agrees that the Guaranteed Obligations made in accordance with may at any time exceed the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.Maximum
Appears in 1 contract
Guaranty. For value received, and to induce m2 EQUIPMENT FINANCE LLC of Brookfield, Wisconsin (aLender) Guaranty to enter into one or more loans of Payment personal property with Palmetto Gourmet Foods, Inc. (Buyer), the undersigned Guarantor (jointly and Performance. The Parent hereby severally, if more than one) guarantees ----------------------------------- to Holder the full and punctual timely payment when due (whether at stated maturityand performance by the Buyer of all sums, debts, liabilities and obligations owed or to be owed by required pre-payment, by acceleration or otherwisethe Buyer to the Lender under the terms of such loan(s), as well as whether such loan(s) are made now, were made previously, or are made in the performance, of all of the indebtedness and other amounts owing under this Note future (collectively, the "“Obligations"”), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional continuing and continuing guaranty unlimited, without regard to the reliability, validity or enforceability of any Obligation of the Buyer hereby guaranteed. ▇▇▇▇▇▇, its successors and assigns, shall not be required to proceed first against the Buyer, or against any other person, firm or entity, or against any collateral security held by ▇▇▇▇▇▇, before enforcing this guaranty and demanding full and punctual payment and performance of all from the undersigned Guarantor(s). This guaranty shall be binding upon the heirs, executors and administrators of the Obligations undersigned, and not shall inure to the benefit of their collectability only m2 EQUIPMENT FINANCE LLC and its successors and assigns. This is in no way conditioned upon any requirement that Holder first attempt to collect any a guaranty of payment, including collection costs and attorney fees. This guaranty is assignable by ▇▇▇▇▇▇. Each Guarantor waives notice of acceptance of this guaranty, and notice of the Obligations from the Company renewal, extension, modification, pre-maturing, compromise or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance release of any of the Obligations, the obligations and waives all defenses that might otherwise limit or impair Guarantor’s liability under this guaranty. Each Guarantor acknowledges that a copy of the Parent hereunder with respect proposed or existing lease(s) and/or EFA(s) has been furnished to such him/her, and that said Guarantor understands the terms and conditions thereof. Each Guarantor consents to personal jurisdiction in the State of Wisconsin. NOTICE TO GUARANTOR You are being asked to guarantee the past, present and future Obligations in default shallof Buyer. If Buyer does not pay or perform, upon demand by Holder, become immediately due and payable you will have to. You may also have to Holder, without demand or notice of any nature, all of which are expressly waived by the Parentpay collection costs. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on can collect the Obligations from you without first trying to collect from Buyer or any number of occasionsother guarantor. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etcX GUARANTOR NAME: ▇▇▇▇ ▇. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.▇▇▇▇▇ Witness Signature ADDRESS: [*****] X CITY/STATE/ZIP: [*****] Witness Print Name SIGNATURE: X DATED: X
Appears in 1 contract
Sources: Equipment Finance Agreement (Oxus Acquisition Corp.)
Guaranty. (a) Guaranty of Payment FOR VALUE RECEIVED, and Performance. The Parent hereby in consideration for, and as an inducement to Owner making the within lease with Tenant, the undersigned guarantees ----------------------------------- to Holder Owner, Owner’s successors and assigns, the full performance and punctual payment when due (whether at stated maturityobservance of all the covenants, conditions and agreements, therein provided to be performed and observed by required preTenant, including the “Rules and Regulations” as therein provided, without requiring any notice of non-payment, by acceleration or otherwise), as well as the non-performance, of or non-observance, or proof, or notice, or demand, whereby to charge the undersigned therefor, all of which the indebtedness undersigned hereby expressly waives and other amounts owing under expressly agrees that the validity of this Note (collectively, agreement and the "Obligations"), including all such Obligations which would become due but for the operation obligations of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is guarantor hereunder shall in no way conditioned upon any requirement that Holder first attempt to collect any be terminated, affected or impaired by reason of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance assertion by Owner against Tenant of any of the Obligations, the obligations of the Parent hereunder with respect rights or remedies reserved to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees Owner pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation the within lease. The undersigned further covenants and agrees that this guaranty shall remain and continue in full force and effect as to any renewal, modification or extension of this lease and during any period when Tenants occupying the obligations of premises as a “statutory tenant.” As a further inducement to Owner to make this lease and in consideration thereof, Owner and the Parent hereunder shall not be released undersigned covenant and agree that in any action or dischargedproceeding brought by either Owner or the undersigned against the other on any matters whatsoever arising out of, in whole or in partunder, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any virtue of the terms or provisions of this Note lease or any other agreement evidencingof this guarantee that Owner and the undersigned shall and do hereby waive trial by jury. Dated: _____________________________, securing or otherwise 19__ Guarantor Witness Guarantor’s Residence Business Address Firm Name STATE OF NEW YORK ) ss.: County of ) On this ____ day of ____________, 19___, before me personally came ________________, to me known, and known to me to be the individual described in and who, executed in connection with any of the Obligations made in accordance with foregoing Guaranty and acknowledged to me that he executed the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.same. Notary
Appears in 1 contract
Guaranty. (a) Guaranty The Guarantor hereby absolutely, unconditionally and irrevocably guarantees, for the benefit of Payment each Beneficiary, the prompt, punctual and Performance. The Parent hereby guarantees ----------------------------------- complete payment to Holder or on behalf of the full and punctual payment when due (relevant Beneficiary, whether at stated maturity, by required pre-paymentprepayment, by acceleration or otherwise), of each Obligation payable by such Beneficiary, whether for principal, interest, premiums, margin, indemnity obligations of the relevant Beneficiary or otherwise, as well as determined in accordance with the performanceterms of such Obligation in existence on the date hereof, without regard to any amendments or modifications to the terms of all such Obligations occurring after the Date of Issuance to which the Guarantor has not given its prior written consent (unless the consent of the indebtedness relevant Beneficiary was not required for such amendments or modifications) plus interest at the Late Funding Rate on such Obligation from the date on which payment is required by the Guarantor hereunder to the date of payment hereunder, whether before or after any judgment and other amounts owing including interest that accrues after the commencement by or against the Guarantor of any proceeding under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Codeany Debtor Relief Laws. This guaranty is an absolute, unconditional and continuing Guaranty constitutes a guaranty of the full and punctual payment and performance of all of the Obligations when due and not of their collectability only collection, and is in no way conditioned the obligations of the Guarantor under this Guaranty shall be primary, direct and immediate and not conditional or contingent upon any requirement that Holder first attempt request or demand made upon, or notice given to collect the Guarantor (other than as set forth in Section 2.1(b) below), or the pursuit by the relevant Beneficiary of any right, claim, demand or remedies they may have against any Person under any of the Obligations from (whether pursuant to the Company terms thereof or resort to any collateral security or other means of obtaining paymentotherwise). Should the Company Each and every default in the any payment or performance guaranteed hereby of any term, covenant or condition contained in the Obligations shall give rise to a separate cause of the Obligations, the obligations of the Parent action hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder relevant Beneficiary and separate suits may be required by ▇▇▇▇▇▇ on any number brought hereunder as each such cause of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Companyaction arises.
(b) Parent's Agreement No later than 12:00 p.m. New York time on the later of (i) one Business Day following receipt by the Guarantor of a notice of claim under an FSA Policy substantially in the form required for such notice of claim under the relevant FSA Policy, and (ii) one Business Day prior to Pay Enforcement Coststhe date the related Obligation is due (including by acceleration to the extent described in the Separation Agreement) under the relevant FSA Policy, etc. The Parent ------------------------------------------------ further agreesthe Guarantor shall make payment by wire transfer of immediately available funds in the relevant Obligation Currency of the relevant Obligations (A) if the payment is being made on or before the date specified in clause (ii) of this subsection (b), to the account of the beneficiary of the applicable FSA Policy, as specified in the principal obligor notice of claim and not as a guarantor only(B) in all other cases, to pay to Holderthe following account of the Beneficiaries, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountother account as the relevant Beneficiary may specify to the Guarantor from time to time by written notice delivered to the Guarantor’s address specified in the Separation Agreement.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.Financial Security Assurance Inc.
Appears in 1 contract
Guaranty. (a) Guaranty Subject to the provisions of Payment Section 2.01(b), each Obligor hereby, jointly and Performance. The Parent hereby severally, unconditionally and irrevocably, guarantees ----------------------------------- to Holder each Guaranteed Creditor and their respective successors, indorsees, transferees and assigns, the full prompt and punctual complete payment and performance by the Borrower or its Subsidiaries when due (whether at the stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Borrower’s Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement Anything herein or in any other Loan Document to Pay Enforcement Coststhe contrary notwithstanding, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum liability of each Obligor hereunder and under the other Loan Documents shall in no event exceed the amount permitted to which can be paid --------- guaranteed by such Obligor under applicable law, then such interest shall be reduced federal and state laws relating to such maximum permitted amountthe insolvency of debtors.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom Each Obligor further agrees to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of pay any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kindexpenses (including, without limitation, all defenses reasonable fees and disbursements of counsel) which may be available paid or incurred by any Guaranteed Creditor in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or collecting, any or all of the Borrower’s Obligations and/or enforcing any rights with respect to, or collecting against, an Obligor under this Guaranty. This Guaranty shall remain in full force and effect until the Borrower’s Obligations are paid in full, or until a release of this Guaranty is made pursuant to Section 2.08, notwithstanding that from time to time prior thereto no amounts may be outstanding under the Loan Agreement.
(d) Each Obligor agrees that the Borrower’s Obligations may at any time and from time to time exceed the amount of the liability of such Obligor hereunder without impairing this Guaranty or affecting the rights and remedies of any Guaranteed Creditor hereunder.
(e) No payment or payments made by the Borrower, any Obligor, any other guarantor or any other Person or received or collected by a Guaranteed Creditor from the Borrower, an Obligor, any other guarantor or any other Person by virtue of any valuation, stay, moratorium law action or other similar law now proceeding or hereafter any set-off or appropriation or application at any time or from time to time in effect, any right to require the marshalling reduction of assets or in payment of the Company Borrower’s Obligations shall be deemed to modify, reduce, release or any other entity or other Person primarily or secondarily liable with respect to any of otherwise affect the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions liability of any instrument evidencingObligor hereunder which shall, securing notwithstanding any such payment or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent payments (other than payments made by the indefeasible payment Borrower or an Obligor in full, in cash, of all respect of the Borrower’s Obligations or payments received or collected from an Obligor in respect of the Borrower’s Obligations), all of which may be done without notice remain liable for the Borrower’s Obligations up to the Parentmaximum liability of any Obligor hereunder until the Borrower’s Obligations are paid in full.
(f) Each Obligor agrees that whenever, at any time, or from time to time, it shall make any payment to any Guaranteed Creditor on account of its liability hereunder, it will notify the Administrative Agent in writing that such payment is made under this Guaranty for such purpose.
Appears in 1 contract
Guaranty. (a) Guaranty For valuable consideration, the receipt and sufficiency of Payment which are hereby acknowledged, and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all in consideration of the indebtedness and other amounts owing under this Note Emerging Technology Fund of the Government Land Bank d/b/a MassDevelopment (collectively, hereinafter called the "ObligationsBank") having made, or now or in the future making, advances or otherwise giving credit to GTC ▇▇▇▇▇ Laboratories, Inc. (hereinafter called the "Borrower"), including all however such Obligations which would become due but for advances or credit may be made or evidenced, the operation of the automatic stay pursuant undersigned does hereby unconditionally guarantee to (S)362(a) of the Federal Bankruptcy Code Bank, its successors and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absoluteassigns, unconditional and continuing guaranty of the full and punctual prompt payment and performance of all of the Obligations present and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the future obligations of the Parent hereunder with respect Borrower to such Obligations Bank, including all renewals and extensions thereof or substitutions therefor. The undersigned also agrees to pay in default shalladdition thereto all costs, upon demand by Holder, become immediately due expenses and payable to Holder, without demand reasonable attorney's fees at any time paid or notice of any nature, all of which are expressly waived incurred by the ParentBank in endeavoring to enforce this Guaranty. Payments Notice of acceptance of and action taken by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number Bank from time to time under this Guaranty are hereby waived, and this Guaranty shall operate as continuing, absolute and irrevocable Guaranty covering all obligations of occasions. All payments by the Parent hereunder shall be made Borrower to the Holder, in the manner Bank (and at the place of payment specified therefor for payments hereunder to be made by the Company.
(brenewals and extensions thereof or substitutions therefor) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now existing or hereafter in effect in arising. Upon any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available default 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 the Company or any other entity or other Person primarily or secondarily liable Borrower with respect to any of the Obligationsobligations herein guaranteed, the liability of the undersigned hereunder shall be deemed to have become immediately due and payable, without demand, presentment, protest or notice of any kind, all of which are hereby waived, and without any suit or action against Borrower or any other Guarantor and without further steps to be taken or further conditions to be performed by Bank or anyone. Failure of Bank to make any demand or otherwise to proceed against the undersigned in respect to any default by Borrower or the undersigned, or Bank's delay in doing so, shall not constitute a waiver of Bank's right to proceed in respect to any or all suretyship defenses generallyother defaults by Borrower or the undersigned. Without limiting the generality The liability of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation undersigned is primary and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, terminated or otherwise affected by or impaired by, and the undersigned waives notice of: Bank's granting time to Borrower (iregardless of the number or length of such grants of time) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity indulgence or indulgences granted by Bank to Borrower; Bank's heretofore, now or hereafter acquiring, releasing or in any way modifying any guaranty from any other person or persons or any collateral or other Person primarily security in whatever form for any of the obligations hereby guaranteed, whether or secondarily liable not notice thereof shall have been or be given to the undersigned; any failure on Bank's part to take any action with respect to, or to realize upon any security, rights, endorsements or guaranties which Bank may now or hereafter hold with respect to any obligation hereby guaranteed, including without limitation rights against the Borrower; any alterations, waivers, extensions, renewals or modifications of any such obligation to which Bank may agree from time to time; any invalidity or unenforceability of any of the Obligationsobligations guaranteed hereby; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the timemembership of any partnership which shall be the Borrower; any fraud, place illegal or manner improper acts of Borrower; any relief of Borrower's with respect to its obligations to Bank because of any right of set-off, deduction or defense of any kind or otherwise; any other defenses which might constitute a legal or equitable discharge of a surety or guarantor; Bank's failure to perfect any lien securing the Borrower's obligations or the obligations of other parties, including any other guarantors; voluntary or involuntary bankruptcy (including a reorganization in bankruptcy) of Borrower or entry of an order for relief against or with respect to the Borrower under Title 11 of the United States Code; composition, extension, moratoria or other forms of debtor relief granted to Borrower pursuant to law presently in force or hereafter enacted; payment of any or all obligations and indebtedness of Borrower in the Obligations event such payment is invalidated or any rescissionsavoided by a trustee, waivers, compromise, refinancing, consolidation custodian or other amendments or modifications receiver of any Borrower; the dissolution of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any ObligationBorrower; or (v) any other act the reorganization, merger or omission which might in any manner consolidation of Borrower into or to any extent vary with another entity, corporate or otherwise, or the risk sale or disposition of the Parent all or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of substantially all of the Obligations)capital stock, business or assets of Borrower to any other person or party. The undersigned further waives all suretyship defenses and defenses in the nature thereof; any right or claim to right to cause a marshaling of which may the assets of the Borrower or any collateral; any right to require the Bank to proceed against security or other guarantors before enforcing this Guaranty; any right of subrogation to Bank's rights against Borrower and any right of reimbursement, indemnity, contribution, exoneration and the like now or hereafter accorded by law to indemnitors, guarantors, sureties or accommodation parties, provided that such waiver shall not be done without notice effective to the Parent.extent that by virtue of such waiver the liability of Guarantor is rendered invalid, avoidable or unenforceable under any applicable law dealing with the recovery or avoidance of so-called fraudulent conveyances or otherwise. Guarantor further warrants and represents to Bank that:
Appears in 1 contract
Sources: Guaranty (Genzyme Transgenics Corp)
Guaranty. (a) Guaranty of Payment The Guarantor does hereby unconditionally and Performance. The Parent hereby guarantees ----------------------------------- irrevocably guarantee to Holder the Lessor, as a primary obligor and not merely as surety, (i) the due, punctual, and full and punctual payment (when due (whether at stated maturity, by required pre-paymentdue, by acceleration or otherwise)) of each amount which the Lessee is or may become obligated to pay under the Operative Documents, as well as (ii) the performancedue and punctual performance and observance by Lessee of each term, provision, condition, agreement and covenant for which it is liable contained in each Operative Document to which it is a party, and (iii) the accuracy of all each of the indebtedness representations and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation warranties of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default Lessee set forth in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the CompanyOperative Documents.
(b) Parent's Agreement to Pay Enforcement CostsThis is a continuing guaranty of payment and performance, etcnot of collection. The Parent ------------------------------------------------ further agreesGuarantor hereby expressly waives notice, promptness, presentment and diligence as to the principal obligor obligations guarantied hereby and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost acceptance of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty or any requirement that the Lessor proceed against Lessee or any security for or any other guarantor of any of the obligations guarantied hereunder (and the enforcement thereofwithout having to join any other Person in any such action). The Guarantor agrees that it shall not be required to consent to, together or receive any notice of, any amendment or modification of, or waiver, consent or extension with interest on amounts recoverable respect to, any Operative Document to which it is not a party that may be made or given as provided therein. Guarantor hereby waives any and all benefits and defenses under California Civil Code Section 2810 and hereby agrees that by doing so Guarantor is liable hereunder from even if Lessee had no liability at the time when such amounts become due until paymentof execution of any of the Operative Documents, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted thereafter ceases to be paid --------- liable. Guarantor hereby waives any and all benefits and defenses under applicable law, then such interest shall California Civil Code Section 2809 and agrees that by doing so Guarantor's liability may be reduced to such maximum permitted amountlarger in amount and more burdensome than that of Lessee.
(c) Waivers by The obligations of the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that Guarantor hereunder are absolute, unconditional, and irrevocable irrespective of the Obligations will be paid and performed strictly in accordance with their respective termslegality, regardless validity or binding effect of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company Operative Documents and, without limiting the foregoing, will not be discharged or otherwise affected by: (i) any other entity extension, increase or other Person primarily or secondarily liable renewal with respect to any obligation of the ObligationsLessee under any Operative Document; (ii) any modification of, or amendment or supplement to, any Operative Document or any other agreement or instrument referred to therein; (iii) any furnishings or acceptance of additional security for any obligation of the Lessee or any release of any such security; (iv) any waiver, consent or other action or inaction or any exercise or non-exercise of any right, remedy or power with respect to the Lessee; (v) any change in the structure or organization of the Lessee or the Guarantor or any determination that the Lessee or the Guarantor lacks capacity or authority to contract; (vi) any insolvency, bankruptcy, reorganization, arrangement, composition, liquidation, dissolution, or similar proceedings with respect to the Lessee or the Guarantor; (vii) any legal prohibition against the exercise of any remedies against the Lessee or the Guarantor under any of the Operative Documents which in either case might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor; (viii) the unenforceability of any terms of the Operative Documents, including without limitation any of the remedies for an Event of Default set forth in Section 15 of the Lease, the Guarantor hereby expressly acknowledging that it participated in the negotiation of such remedies, that it is fully familiar with the terms of such remedies, that it consents to such terms, and that for the Lessor such remedies are essential to the transactions contemplated by the Operative Documents; (ix) any limitation, discharge, or cessation which may now or hereafter be imposed by any statute, regulation or rule of law, of the liability or obligations of the Lessee or the Guarantor or any other Person under the terms of the Operative Documents or any discharge, termination, cancellation, frustration, irregularity, or impossibility of performance, in whole or in part, of the Operative Documents or any term thereof; (x) any defect in the title, condition, design, operation or fitness for use of, or damage to or loss or destruction of or interruption of use of the Aircraft or any part thereof for any reason whatsoever regardless of the duration thereof, whether or not resulting from accident and whether or not without fault of the Lessee, the Guarantor, or any other Person; (xi) any defense, setoff, counterclaim, or claim of recoupment, discharge or exoneration, that the Lessee or the Guarantor may have or assert; (xii) any failure, omission or delay on the part of the Lessee to conform or comply with any term of the Operative Documents; and (xiii) any other occurrence or circumstance whatsoever which might otherwise constitute a legal or equitable discharge or defense of a surety or guaranty, except (A) payment in full of all suretyship defenses generallyamounts payable by the Lessee under the Operative Documents and performance in full of all obligations of the Lessee, in each case in accordance with the terms and conditions of the Operative Documents and (B) payment and performance in full of the obligations of the Guarantor hereunder. Without limiting the generality of the foregoing, Guarantor hereby waives the Parent agrees to the provisions of any instrument evidencingrights and benefits under California Civil Code Section 2819, securing or otherwise executed in connection with any Obligation and agrees that the by doing so Guarantor's liability shall continue even if Lessor alters any obligations of the Parent guaranteed hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner respect or to if Lessor's remedies or rights against Lessee are in any extent vary the risk of the Parent way impaired or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done suspended without notice to the ParentGuarantor's consent.
Appears in 1 contract
Sources: Lease Agreement (Turn Works Acquisition Iii Sub a Inc)
Guaranty. (a) Guaranty Guarantor hereby absolutely and, subject only to Section 1(b) of Payment this Guaranty, unconditionally guarantees, and Performance. The Parent hereby guarantees ----------------------------------- promises to Holder and for the full benefit of Obligees, the full, prompt and punctual payment when due (whether at stated maturity, complete performance by required pre-payment, by acceleration or otherwise)each Seller, as well as the performanceand when due, of all every duty, undertaking, obligation and covenant of each Seller to any Obligees whether now or hereafter arising under, out of, related to or by reason of Sections 2, 5, 9 and 12 of the indebtedness Stock Purchase Agreement and any other amounts owing provision of the Stock Purchase Agreement related to the enforcement of the obligations under this Note those provisions, subject in all cases to such limitations (if any) to those obligations as are provided in the Stock Purchase Agreement (collectively, the "Guaranteed Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement Notwithstanding the foregoing, Buyer shall not seek to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses enforce this Guaranty (including court costs and reasonable legal expenses, including the allocated cost of staff counseli) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any Guaranteed Obligations arising out of a Seller's failure to make payments due for indemnification claims made prior to June 30, 2004 under Section 9(b)(i) of the Obligations, Stock Purchase Agreement unless and until the aggregate amount of all suretyship defenses generally. Without limiting the generality such claims are in excess of Buyer's right under Section 9(d) of the foregoing, Stock Purchase Agreement to offset against the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation Additional Consideration payment that is due and agrees that the obligations payable under Section 2(c) of the Parent hereunder Stock Purchase Agreement as of June 30, 2004 (if any) and (ii) with respect to Guaranteed Obligations arising out of a Seller's failure to make payments due for indemnification claims made after June 30, 2004, but prior to June 30, 2005 under Section 9(b)(i) of the Stock Purchase Agreement unless and until the aggregate amount of all such claims are in excess of Buyer's right under Section 9(d) of the Stock Purchase Agreement to offset against the Additional Consideration payment that is due and payable under Section 2(c) of the Stock Purchase Agreement as of June 30, 2005 (if any). For purposes of the foregoing only, Buyer shall not be released or discharged, deemed to have a right of offset against any amount of Additional Consideration that is in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to dispute. Buyer may not enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable this Guaranty with respect to any Guaranteed Obligations that consist of indemnification claims made on or prior to June 30, 2004 under Section 9(b)(i) of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.Stock Purchase Agreement until after June 30,
Appears in 1 contract
Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- In order to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by induce ▇▇▇▇▇▇ on any number VENTURE CAPITAL, having its principal place of occasionsbusiness in Boca Raton, Florida (“Lender”), to loan the principal amount of One Hundred Seventy-Five Thousand and No/100 Dollars ($175,000.00) to I2 TELECOM INTERNATIONAL, INC., a Washington corporation (“Borrower”), evidenced by that certain Promissory Note executed by Borrower contemporaneously herewith (the “Note”), ▇▇▇▇ ▇. All payments by ARENA (the Parent hereunder shall be made “undersigned”) hereby irrevocably, unconditionally, and absolutely guarantees the due performance and punctual payment in full of all obligations and all costs, including attorneys’ fees, arising out of Borrower’s obligations under the Note (all such obligations, costs, expenses and liabilities being hereinafter referred to as the “Obligations”), pursuant to the Holderterms and conditions set forth herein. The Undersigned hereby waives diligence, presentment, protest, notice of dishonor, extension of time of payment, and notice of acceptance of this Guaranty and hereby consents to any and all forbearances and extensions of time of payment of the Obligations and to any and all of the changes in the manner terms, covenants and at the place conditions thereof hereafter made or guaranteed. The Undersigned agrees that this Guaranty shall constitute a guaranty of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not of collection and that, upon a reasonable determination by Lender that it will not be able to collect the Obligations in full or without substantial delay from other sources, this Guaranty may be enforced by Lender at any time after forty-five (45) days after the Obligations become due and payable whether on the Maturity Date (as a guarantor onlydefined in the Note) or by acceleration or otherwise, upon written notice to pay to Holder, on demand, all reasonable costs and expenses the Undersigned without first (i) making any effort whatsoever at collection of the Obligations from Borrower or any other party that may be liable therefore (including court costs and reasonable legal expensesfiling suit or proceeding to obtain or assert a claim for judgment against Borrower or any such other party), including the allocated cost of staff counselright to require Lender to take action against Borrower as provided in O.C.G.A. §10-7-24 being hereby expressly waived, or (ii) incurred exercising or expended by Holder asserting any other right or remedy that may be available in connection with the Obligations, this guaranty and . In the enforcement thereof, together with interest on amounts recoverable hereunder from event of the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted Undersigned’s failure to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that pay the Obligations will be paid when due hereunder, the Undersigned shall pay all expenses of Lender actually incurred by Lender in enforcing and performed strictly collecting under this Guaranty, including reasonable attorneys’ fees and expenses. No delay or omission by Lender in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting exercising any of such terms or its rights, remedies, powers and privileges hereunder and no course of dealing between Lender, on the rights of Holder with respect thereto. The Parent waives promptnessone hand, diligenceand Borrower, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company Undersigned or any other entity or person, on the other Person primarily or secondarily liable with respect to any of the Obligationshand, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected deemed a waiver by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment Lender of any of the Obligations its rights, remedies, powers, and privileges, even if such delay or omission is continuous or repeated; nor shall any rescissions, waivers, compromise, refinancing, consolidation single or other amendments or modifications partial exercise of any right, remedy, power or privilege preclude any other or further exercise thereof by Lender or the exercise of any other right, remedy, power or privilege by Lender. This Guaranty shall inure to the terms benefit of Lender and its successors and assigns, and shall be binding upon the Undersigned and his respective successors and assigns. This instrument constitutes the entire agreement as to the subject matter contemplated hereby. This instrument has been made and delivered in Georgia and shall be governed by the laws of Georgia. If any provision of this instrument shall be prohibited by or invalid under such law, such provision shall be ineffective to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of this Note or any other agreement evidencing, securing or otherwise instrument. This instrument may be executed in connection with any counterparts and delivered by facsimile, each of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), counterpart shall be deemed an original but all of which may be done without notice to shall constitute one and the Parentsame instrument.
Appears in 1 contract
Guaranty. (a) Guaranty The Guarantors, jointly and severally, hereby unconditionally and irrevocably, guaranty to the Collateral Agent, for the benefit of Payment the Purchasers and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other Noteholder, the full punctual payment, as and punctual payment when due (whether at and payable, by stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness Obligations, including, without limitation, all interest, make-whole, redemption and other amounts owing under this Note that accrue after the commencement of any Insolvency Proceeding of the Company or any Guarantor, whether or not the payment of such principal, interest, make-whole, redemption and/or other amounts are enforceable or are allowable in such Insolvency Proceeding, and all fees, late fees (collectively, as defined in the "Obligations"Note), including interest, premiums, penalties, causes of actions, costs, commissions, expense reimbursements, indemnifications and all such Obligations which would other amounts due or to become due but for under the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code Note and the operation of other Transaction Documents and (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations foregoing collectively being the “Guaranteed Obligations”), and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, agree to pay to Holder, on demand, any and all reasonable costs and expenses (including court costs reasonable and reasonable legal documented counsel fees and expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly Collateral Agent or Purchasers in accordance with their respective terms, regardless of enforcing any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company under this Guaranty or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generallyTransaction Document. Without limiting the generality of the foregoing, each Guarantor’s liability hereunder shall extend to all amounts that constitute part of the Parent agrees Guaranteed Obligations and would be owed by the Company to the provisions Collateral Agent or the Purchasers under the Securities Purchase Agreement, the Notes and any other Transaction Document but for the fact that they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any instrument evidencingTransaction Party.
(b) Each Guarantor, securing and by its acceptance of this Guaranty, the Collateral Agent and the Purchasers, hereby confirms that it is the intention of all such Persons that this Guaranty and the Guaranteed Obligations of each Guarantor hereunder not constitute a fraudulent transfer or otherwise executed in connection with conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any Obligation similar foreign, federal, provincial, state, or other applicable law to the extent applicable to this Guaranty and agrees the Guaranteed Obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Collateral Agent, the Purchasers and the Guarantors hereby irrevocably agree that the obligations Guaranteed Obligations of each Guarantor under this Guaranty at any time shall be limited to the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change maximum amount as will result in the time, place Guaranteed Obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentconveyance.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment Guarantor hereby absolutely, unconditionally and Performance. The Parent hereby irrevocably guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, prompt performance by required pre-payment, by acceleration or otherwise), as well as each of the performance, Seller Entities of all of their obligations to Purchaser pursuant to the indebtedness and other amounts owing under terms of this Note (collectivelyAgreement, the "Obligations")Assignment Agreement and the Patent Assignment Agreement, including all such payment obligations (the “Guaranteed Obligations”), and the Guaranteed Obligations which would become due but for shall be enforceable against Guarantor to the operation same extent as if Guarantor were the primary obligor under this Agreement. Without limiting the foregoing, Guarantor hereby agrees to cause each of the automatic stay pursuant Seller Entities to (S)362(a) comply with the terms and conditions of this Agreement, the Federal Bankruptcy Code Assignment Agreement and the operation Patent Assignment Agreement. The liability of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This Guarantor under this guaranty is an shall be absolute, unconditional direct and continuing guaranty of the full and punctual payment and performance of all of the Obligations immediate and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance pursuit of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand remedies against any Seller Entity. A separate action or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder actions may be required by ▇▇▇▇▇▇ on brought and prosecuted against Guarantor to enforce this guaranty irrespective of whether any number of occasions. All payments by the Parent hereunder shall be made to the Holder, action is brought against any Seller Entity or whether any Seller Entity is joined in the manner and at the place of payment specified therefor for payments hereunder to be made by the Companysuch action or actions.
(b) Parent's Agreement Guarantor hereby waives and agrees not to Pay Enforcement Costsassert or take advantage of any of the following: (i) without limiting the defense of statute of limitations with respect to claims to be asserted against any Seller Entity, etc. The Parent ------------------------------------------------ further agreesthe defense of the statute of limitations in any action hereunder or for the collection of or the performance of any Guaranteed Obligation; (ii) any defense that may arise by reason of the incapacity or lack of authority of Guarantor; (iii) any defense based on the failure of Purchaser or any of its Affiliates to give notice of the existence, as creation, or incurring of any new or additional obligation or of any action or non-action on the principal obligor and not as a guarantor onlypart of any other person whomsoever, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, any Guaranteed Obligation; (iv) acceptance or notice of acceptance of this guaranty by Purchaser; (v) notice of presentment and the enforcement thereof, together demand for payment of or performance of any Guaranteed Obligation; and (vi) protest and notice of dishonor or of default to Guarantor or to any other party with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted respect to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountany Guaranteed Obligation.
(c) Waivers Guarantor hereby represents and warrants that as of the date of this Agreement, (a) it is a corporation or other legal entity duly incorporated or formed, validly existing and in good standing under the applicable Laws; (b) it and its Affiliates have all requisite corporate, partnership, and other organizational (as applicable) power and authority to execute, deliver and perform its and their obligations under this Agreement; (c) the execution, delivery and performance of this Agreement has been duly authorized by it and its Affiliates, as applicable; (d) this Agreement has been duly executed and delivered by it and its Affiliates and assuming the due authorization, execution and delivery by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that other parties hereto and thereto, constitute the Obligations will be paid valid and performed strictly binding obligations of it and its Affiliates, as applicable, enforceable against it in accordance with their respective terms, regardless subject to Laws of any lawgeneral application relating to bankruptcy, regulation or order now or hereafter insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptnessgeneral, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 (e) as of the Company or any other entity or other Person primarily or secondarily liable date of this Agreement, it and its Subsidiaries are in compliance in all material respects with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed applicable Laws in connection with any Obligation its and agrees that the their obligations under this Agreement; and (f) as of the Parent hereunder shall not be released date of this Agreement, there is no outstanding litigation, arbitrated matter or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder other dispute to assert any claim or demand or to enforce any right or remedy against the Company which it or any other entity of its Affiliates is a party, and which, if decided unfavorably to it or other Person primarily its Affiliates, would reasonably be expected to have a material adverse effect on the ability of it or secondarily liable with respect its Affiliates to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation fulfill its or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of their respective obligations under this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentAgreement.
Appears in 1 contract
Guaranty. The Guarantor hereby irrevocably, unconditionally and absolutely guarantees the punctual payment in full of (a) Guaranty the principal of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder interest on (including, without limitation, interest accruing after the full 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 punctual payment any other amounts due under, the Promissory Note when and as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Promissory Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect from the Borrower or any other guarantor of the Promissory Note or upon any other action, occurrence or circumstance whatsoever. In the event that the Borrower shall fail so to pay any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the such Guaranteed Obligations, the obligations of Guarantor agrees to pay the Parent hereunder with respect same when due to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holderthe Lender, without demand demand, presentment, protest or notice of any naturekind, all in lawful money of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number United States of occasions. All payments by the Parent hereunder shall be made America, pursuant to the Holder, requirements for payment specified in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etcPromissory Note. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder Each default in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment 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. The Guarantor agrees to pay and to indemnify and save the Lender harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which the Lender may incur or be subject to as a consequence, direct or indirect, of (x) any rescissions, waivers, compromise, refinancing, consolidation breach by the Guarantor or other amendments or modifications by the Borrower of any representation, warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty, the terms or provisions of this Promissory Note or any other agreement evidencinginstrument referred to therein, securing together with all expenses resulting from the compromise or otherwise executed in connection defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the validity or enforceability of this Guaranty, the Promissory Note or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Guaranty. The Guarantor hereby acknowledges and agrees that the Guarantor’s liability hereunder is joint and several with any other person(s) who may guarantee the obligations and indebtedness under and in respect of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentPromissory Note.
Appears in 1 contract
Guaranty. The Guarantor hereby unconditionally and irrevocably guarantees to the Investor, and its respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Borrower when due of all its obligations, liabilities and indebtedness under the Notes, the Securities Purchase Agreement and any other agreement of the Borrower referred to in the Securities Purchase Agreement (the Notes, the Securities Purchase Agreement, any other such agreement and the security agreement entered into by the Guarantor in favor of the Investor pursuant to the Securities Purchase Agreement are herein collectively referred to as the “Investment Documents”), whether by lapse of time, by acceleration of maturity or otherwise. The Guarantor hereby unconditionally and irrevocably covenants and agrees that the Borrower and the Guarantor, jointly and severally, are liable for the obligations guaranteed hereunder as primary obligors. In the event any Investment Document shall be terminated as a result of the rejection thereof by any trustee, receiver or liquidating agent of the Borrower or any of their properties in any bankruptcy, insolvency, reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar proceeding, the Guarantor’s obligations hereunder shall continue to the same extent as if such Investment Document had not been so rejected.
(a) Guaranty If all or any part of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment or obligations guaranteed hereunder shall not be punctually paid or performed when due (due, whether at stated demand, maturity, acceleration or otherwise, the Guarantor shall, immediately upon demand by required prean Investor, and without presentment, protest, notice of dishonor, notice of non-payment, by notice of intention to accelerate the maturity, notice of acceleration of the maturity, or otherwise)any other notice whatsoever, as well as pay such due amount in lawful money of the performanceUnited States of America, or perform such due obligations, to such Investor. Such demands may be made at any time coincident with or after the time for payment of all or part of the indebtedness obligations guaranteed hereunder, and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant may be made from to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon the same or different items of obligations guaranteed hereunder. Such demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to deemed made, given and received in accordance with the Holder, in notice and the manner and at the place of payment specified therefor for payments hereunder to be made by the Companywaiver provisions hereof.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, Guarantor agrees to pay to Holder, on demand, all reasonable costs and costs, expenses (including court costs including, without limitation, attorneys’ fees and reasonable legal expenses, including the allocated cost of staff counseldisbursements) and damages incurred or expended by Holder in connection with the Obligationsenforcement of the Guaranty to the extent that such costs, this guaranty expenses and damages are not paid by the enforcement thereof, together with interest on amounts recoverable hereunder from Borrower pursuant to the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountrespective Investment Documents.
(c) Waivers The Guarantor further agrees that if any payment made by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms Borrower or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees Guarantor to the provisions of any instrument evidencingInvestor on this Guaranty is rescinded, securing recovered from or otherwise executed in connection with any Obligation and agrees that repaid by the obligations of the Parent hereunder shall not be released or dischargedInvestor, in whole or in part, in any bankruptcy, insolvency or otherwise affected similar proceeding instituted by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company Borrower or Guarantor, this Guaranty shall continue to be fully effective to the same extent as though the payment so recovered or repaid had never originally been made on the Guaranty of, and, without giving effect to, any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution discharge or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of Guarantor’s obligations hereunder granted by the Parent or otherwise operate as a release or discharge of Investor after the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentdate hereof.
Appears in 1 contract
Sources: Guaranty (Versadial, Inc.)
Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby Guarantor absolutely, unconditionally, and irrevocably guarantees ----------------------------------- to Holder each of the holders:
(i) the full and punctual prompt payment of the principal of and interest on the Notes and Make-Whole Amount, if any, when due (due, whether at stated maturity, by required pre-payment, by upon acceleration or otherwise, and at all times thereafter, and the prompt payment of all sums that may now be or may hereafter become due and owing under the Notes, this Agreement, or any Subsidiary Guaranty;
(ii) the payment of all Parent Guaranty Enforcement Costs (as defined in Section 23.3 below); and
(iii) the full, as well as the complete, and punctual observance, performance, and satisfaction of all of the indebtedness obligations, duties, covenants, and other amounts owing agreements of the Company under this Note Agreement. All amounts due, debts, liabilities, and payment obligations described in subparagraph (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(ai) of this Section 23.1(a) are referred to herein as the Federal Bankruptcy Code and the operation of “Guaranteed Note Indebtedness.” All obligations described in subparagraph (S)(S)502(b) and 506(biii) of this Section 23.1(a) are referred to herein as the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the “Parent Guaranty Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.”
(b) Parent's Agreement to Pay Enforcement CostsIn the event of any default by the Company in making payment of the Guaranteed Note Indebtedness, etc. The or in performance of the Parent ------------------------------------------------ further Guaranty Obligations, as aforesaid, in each case beyond the expiration of any applicable grace period, the Parent Guarantor agrees, as on demand by the principal obligor and not as a guarantor onlyholders, to pay all the Guaranteed Note Indebtedness and to Holder, on demand, perform all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred Parent Guaranty Obligations as are then or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts thereafter become due until payment, whether before and owing or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted are to be paid --------- performed under applicable law, then such interest shall be reduced to such maximum permitted amountthe terms of the Notes and this Agreement.
(c) Waivers The Parent Guarantor does hereby waive (i) any and all notices and demands of every kind that may be required to be given by any Law, (ii) any defense or right of set-off that the Parent Guarantor may have against the Company or that Parent Guarantor or the Company may have against any holder of a Note, (iii) presentment for payment, demand for payment (other than as provided for in paragraph (b) above), notice of nonpayment (other than as provided for in paragraph (b) above) or dishonor, protest and notice of protest, diligence in Terreno Realty LLC Note Purchase Agreement collection and any and all formalities that otherwise might be legally required to charge the Parent Guarantor with liability, (iv) any defense based on the failure by the Parent; ▇▇▇▇▇▇'s Freedom holders to Act. The inform the Parent agrees ---------------------------------------------- Guarantor of any fact that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order holders may now or hereafter in effect in any jurisdiction affecting any of such terms know about the Company, the Notes, this Agreement, or the rights transactions contemplated by this Agreement, it being understood and agreed that the holders have no duty so to inform and that the Parent Guarantor is fully responsible for being and remaining informed by the Company of Holder with respect thereto. The all circumstances bearing on the existence or creation, or the risk of nonpayment of the Guaranteed Note Indebtedness or the risk of nonperformance of the Parent waives promptnessGuaranty Obligations, diligence, presentment, demand, protest, notice of acceptance, notice of and (v) any Obligations incurred and 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 cause a marshalling of assets of the Company or any other entity action by any court or other Person primarily or secondarily liable governmental body with respect thereto, or to cause the holders to proceed against any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed other security given another holder in connection with the Guaranteed Note Indebtedness or the Parent Guaranty Obligations. The holders shall have no obligation to disclose or discuss with the Parent Guarantor, such holder’s assessment of the financial condition of the Company. The Parent Guarantor acknowledges that no representations of any Obligation kind whatsoever have been made by the holders to the Parent Guarantor, except as expressly set forth in Section 6 herein.
(d) The Parent Guarantor further agrees that its liability as guarantor shall in no way be impaired by any renewals or extensions that may be made from time to time, with or without the knowledge or consent of the Parent Guarantor of the time for payment of interest or principal under a Note or any Make-Whole Amount or by any forbearance or delay in collecting interest or principal under a Note, or by any waiver by any holder, or by any holder’s failure or election not to pursue any other remedies they may have against the Company, or by any change or modification in a Note, this Agreement, any Subsidiary Guaranty, or by the acceptance by any holder of any security or any increase, substitution or change therein, or by the release by any holder of any security or any withdrawal thereof or decrease therein, or by the application of payments received from any source to the payment of any obligation other than the Guaranteed Note Indebtedness, (unless such payment was expressly directed to be applied to the Guaranteed Note Indebtedness and such direction was made in accordance with this Agreement) even though a holder may lawfully have elected to apply such payments to any part or all of the Guaranteed Note Indebtedness, it being the intent hereof that Parent Guarantor shall remain liable as principal for payment of the Guaranteed Note Indebtedness and performance of the Parent Guaranty Obligations until all Indebtedness has been paid in full and the other terms, covenants and conditions of the this Agreement, the Notes, any Subsidiary Guaranty and this Parent Guaranty have been performed, notwithstanding any act or thing that might otherwise operate as a legal or equitable discharge of a surety. The Parent Guarantor further understands and agrees that the obligations holders may at any time enter into agreements with the Company to amend or modify a Note, this Agreement or any Subsidiary Guaranty and may waive or release any provision or provisions of a Note, this Agreement or any Subsidiary Guaranty and, with reference to such instruments, may make and enter into any such agreement or agreements as the holders and the Company may deem proper and desirable, without in any manner impairing the guaranty in this Section 23 or any of the holders’ rights hereunder or any of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentGuarantor’s obligations hereunder.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby Guarantor absolutely, unconditionally, and irrevocably guarantees ----------------------------------- to Holder each of the holders:
(i) the full and punctual prompt payment of the principal of and interest on the Notes and Make-Whole Amount, if any, when due (due, whether at stated maturity, by required pre-payment, by upon acceleration or otherwise, and at all times thereafter, and the prompt payment of all sums that may now be or may hereafter become due and owing under the Notes, this Agreement, or any Subsidiary Guaranty;
(ii) the payment of all Parent Guaranty Enforcement Costs (as defined in Section 23.3 below); and
(iii) the full, as well as the complete, and punctual observance, performance, and satisfaction of all of the indebtedness obligations, duties, covenants, and other amounts owing agreements of the Company under this Note Agreement. All amounts due, debts, liabilities, and payment obligations described in subparagraph (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(ai) of this Section 23.1(a) are referred to herein as the Federal Bankruptcy Code and the operation of “Guaranteed Note Indebtedness.” All obligations described in subparagraph (S)(S)502(b) and 506(biii) of this Section 23.1(a) are referred to herein as the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the “Parent Guaranty Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.”
(b) Parent's Agreement to Pay Enforcement CostsIn the event of any default by the Company in making payment of the Guaranteed Note Indebtedness, etc. The or in performance of the Parent ------------------------------------------------ further Guaranty Obligations, as aforesaid, in each case beyond the expiration of any applicable grace period, the Parent Guarantor agrees, as on demand by the principal obligor and not as a guarantor onlyholders, to pay all the Guaranteed Note Indebtedness and to Holder, on demand, perform all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred Parent Guaranty Obligations as are then or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts thereafter become due until payment, whether before and owing or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted are to be paid --------- performed under applicable law, then such interest shall be reduced to such maximum permitted amountthe terms of the Notes and this Agreement.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- Guarantor does hereby waive (i) any and all notices and demands of every kind that the Obligations will may be paid and performed strictly in accordance with their respective terms, regardless of required to be given by any law, regulation (ii) any defense or order right of set-off that the Parent Guarantor may have against the Company or that Parent Guarantor or the Company may have against any holder of a Note, (iii) presentment for payment, demand for payment (other than as provided for in paragraph (b) above), notice of nonpayment (other than as provided for in paragraph (b) above) or dishonor, protest and notice of protest, diligence in collection and any and all formalities that otherwise might be legally required to charge the Parent Guarantor with liability, (iv) any defense based on the failure by the holders to inform the Parent Guarantor of any fact that the holders may now or hereafter in effect in any jurisdiction affecting any of such terms know about the Company, the Notes, this Agreement, or the rights transactions contemplated by this Agreement, it being understood and agreed that the holders have no duty so to inform and that the Parent Guarantor is fully responsible for being and remaining informed by the Company of Holder with respect thereto. The all circumstances bearing on the existence or creation, or the risk of nonpayment of the Guaranteed Note Indebtedness or the risk of nonperformance of the Parent waives promptnessGuaranty Obligations, diligence, presentment, demand, protest, notice of acceptance, notice of and (v) any Obligations incurred and 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 cause a marshalling of assets of the Company or any other entity action by any court or other Person primarily or secondarily liable governmental body with respect thereto, or to cause the holders to proceed against any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed other security given another holder in connection with the Guaranteed Note Indebtedness or the Parent Guaranty Obligations. The holders shall have no obligation to disclose or discuss with the Parent Guarantor such Terreno Realty LLC Agreement Note Purchase holder’s assessment of the financial condition of the Company. The Parent Guarantor acknowledges that no representations of any Obligation kind whatsoever have been made by the holders to the Parent Guarantor, except as expressly set forth in Section 6 herein.
(d) The Parent Guarantor further agrees that its liability as guarantor shall in no way be impaired by any renewals or extensions that may be made from time to time, with or without the knowledge or consent of the Parent Guarantor of the time for payment of interest or principal under a Note or any Make-Whole Amount or by any forbearance or delay in collecting interest or principal under a Note, or by any waiver by any holder, or by any holder’s failure or election not to pursue any other remedies it may have against the Company, or by any change or modification in a Note, this Agreement, any Subsidiary Guaranty, or by the acceptance by any holder of any security or any increase, substitution or change therein, or by the release by any holder of any security or any withdrawal thereof or decrease therein, or by the application of payments received from any source to the payment of any obligation other than the Guaranteed Note Indebtedness, (unless such payment was expressly directed to be applied to the Guaranteed Note Indebtedness and such direction was made in accordance with this Agreement) even though a holder may lawfully have elected to apply such payments to any part or all of the Guaranteed Note Indebtedness, it being the intent hereof that Parent Guarantor shall remain liable as principal for payment of the Guaranteed Note Indebtedness and performance of the Parent Guaranty Obligations until all Indebtedness has been paid in full and the other terms, covenants and conditions of the this Agreement, the Notes, any Subsidiary Guaranty and this Section 23 have been performed, notwithstanding any act or thing that might otherwise operate as a legal or equitable discharge of a surety. The Parent Guarantor further understands and agrees that the obligations holders may at any time enter into agreements with the Company to amend or modify a Note, this Agreement or any Subsidiary Guaranty and may waive or release any provision or provisions of a Note, this Agreement or any Subsidiary Guaranty and, with reference to such instruments, may make and enter into any such agreement or agreements as the holders and the Company may deem proper and desirable, without in any manner impairing the guaranty in this Section 23 or any of the holders’ rights hereunder or any of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentGuarantor’s obligations hereunder.
Appears in 1 contract
Guaranty. (a) Guaranty Each Guarantor, jointly and severally, irrevocably, absolutely and unconditionally guarantees as a primary obligor and not merely as surety to the holders of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the Notes the full and punctual prompt payment when due (whether at the stated maturity, by required pre-paymentor optional prepayment, by acceleration declaration, acceleration, demand or otherwise, as applicable) of all (a) the principal of, Make-Whole Amount, if any, and interest 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), as well as and any other amounts due under, the performanceNotes and (b) any other sums which may become due under the terms and provisions of the Notes and the Note Agreement (all such obligations described in clauses (a) and (b) above are herein called the “Guaranteed Obligations”). Each party hereto understands, of agrees and confirms that, if any or all of the indebtedness Guaranteed Obligations becomes due and other amounts owing under this payable, subject to the expiration of any applicable grace or cure period expressly set forth in the Note (collectivelyAgreement, the "Obligations"), including all such Obligations which would become due but for the operation holders of the automatic stay pursuant Notes may enforce this Guaranty Agreement up to (S)362(a) the full amount of the Federal Bankruptcy Code Guaranteed Obligations against such Guarantor without proceeding against any other Guarantor (as defined in the Note Agreement) or the Company, and such Guarantor agrees to pay such Guaranteed Obligations to the operation of (S)(S)502(b) and 506(b) holders of the Federal Bankruptcy CodeNotes, on demand. This guaranty is an absolute, unconditional and continuing guaranty of Each Guarantor further agrees that the full due and punctual payment and performance of all of the Guaranteed Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company may be extended or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or dischargedrenewed, in whole or in part, without notice to or otherwise affected further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any Guaranteed Obligation. This Guaranty is a guaranty of payment and not of collection.
(b) Additionally, each Guarantor, jointly and severally, unconditionally, absolutely and irrevocably, guarantees the payment of any and all Guaranteed Obligations whether or not due or payable by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with upon the occurrence in respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment Company of any of the events specified in Section 11(h) or (i) of the Note Agreement, and unconditionally, absolutely and irrevocably, jointly and severally, promises to pay such Guaranteed Obligations to the holders of the Notes, or any rescissionsorder, waivers, compromise, refinancing, consolidation or other amendments or modifications following the occurrence in respect of the Company of any of the terms events specified in Section 11(h) or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any (i) of the Obligations made in accordance with the terms hereof; (iv) the additionNote Agreement, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parenton demand.
Appears in 1 contract
Sources: Note Purchase Agreement (CF Industries Holdings, Inc.)
Guaranty. (a) Guaranty of Payment The Guarantor hereby unconditionally and Performance. The Parent hereby irrevocably guarantees ----------------------------------- to Holder the full Lender the prompt and punctual complete payment by the Borrowers when due (whether at the stated maturity, by required pre-payment, by acceleration or otherwise) of (i) all Obligations, (ii) all other obligations or indebtedness of the Borrowers to the Lender under the Transaction Documents and (iii) all obligations of the Guarantor hereunder (clauses (i)-(iii), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "“Guarantor Obligations"”), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement The Guarantor shall pay all or any part of the Guarantor Obligations then due promptly following written demand therefor (and in any event within two (2) Business Days of such demand) by the Lender to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, the Guarantor upon the occurrence of any Event of Default (as defined in the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountLoan Agreement).
(c) Waivers The Guarantor further agrees to promptly pay upon written demand therefor (and in any event within five (5) Business Days of such demand) any and all reasonable and documented expenses (including, without limitation, all fees and disbursements of counsel to the Lender) which are paid or incurred by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that Lender in enforcing, or obtaining advice of counsel in respect of enforcing or collecting, any or all of the Guarantor Obligations will be paid and performed strictly in accordance with their respective terms, regardless of and/or enforcing any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect theretoto, or collecting against, the Guarantor under this Guaranty, in each case following written demand by the Lender to the Guarantor for payment of the Guarantor Obligations upon the occurrence of and during the continuance of an Event of Default under the Loan Agreement. The Parent waives promptnessThis Guaranty shall remain in full force and effect until the Guarantor Obligations are paid in full, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which notwithstanding that from time to time prior thereto the Borrowers may be available free from any Guarantor Obligations.
(d) No payment or payments made by the Borrowers, any other guarantor under the Transaction Documents or any other Person or received or collected by the Lender from the Borrowers or any other Person by virtue of any valuationaction or proceeding or any set-off or appropriation or application, stayat any time or from time to time, moratorium law in reduction of or other similar law now or hereafter in effect, any right to require the marshalling of assets payment of the Company Guarantor Obligations shall be deemed to modify, reduce, release or any other entity or other Person primarily or secondarily liable with respect to any otherwise affect the liability of the ObligationsGuarantor hereunder for any Guarantor Obligations remaining upon application of such payment or payments, and all suretyship defenses generally. Without limiting the generality Guarantor shall, notwithstanding any such payment or payments, remain liable for payment of the foregoingremaining Guarantor Obligations until such Guarantor Obligations are paid in full.
(e) The Guarantor agrees that whenever, at any time, or from time to time, the Parent agrees Guarantor shall make any payment to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations Lender on account of the Parent Guarantor’s liability hereunder, the Guarantor will notify the Lender in writing that such payment is made under this Guaranty for such purpose.
(f) Any payment made by the Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in Guarantor Obligations shall be applied by the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice Lender solely to the ParentGuarantor Obligations.
Appears in 1 contract
Sources: Guaranty and Security Agreement (Encore Capital Group Inc)
Guaranty. (a) Guaranty The Guarantor unconditionally and irrevocably guarantees (as primary obligor and not merely as surety) payment in full as provided in the Agreement of Payment all amounts payable by SDA under the Agreement, as and Performancewhen those amounts become payable by SDA pursuant to the terms and conditions contained in the Agreement. The Parent hereby Guarantor further unconditionally and irrevocably guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, performance by required pre-payment, by acceleration or otherwise)SDA, as well as and when required pursuant to the performanceterms and conditions of the Agreement, of all obligations of SDA under the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant Agreement. The Guaranty contained herein is made subject to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations terms and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default conditions contained in the payment or performance of any of the Obligations, Agreement evidencing the obligations of the Parent hereunder with respect to such Obligations in default shallSDA guaranteed hereby, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder nothing contained herein shall be made deemed to the Holder, amend or modify any of such terms or conditions in the manner and at the place of payment specified therefor for payments hereunder to be made by the Companyany way.
(b) Parent's This is a continuing Guaranty and a guaranty of payment (not merely of collection) and performance, and it shall remain in full force and effect until the later to occur of (i) termination of the Agreement in accordance with its terms and (ii) such time as all amounts payable by SDA under the Agreement have been validly, finally and irrevocably paid in full. This Guaranty shall not be affected in any way by the absence of any action to Pay Enforcement Costsobtain those amounts from SDA. With respect to this Guaranty, etc. The Parent ------------------------------------------------ further agreesthe Guarantor waives all requirements as to presentment, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until demand for payment, whether before demand for performance, notice of default, protest or after judgment, at notice of any kind regarding SDA or the rate breach by SDA of interest set forth in (S)1 hereof, provided that if such interest exceeds its obligations under the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountAgreement.
(c) Waivers This Guaranty shall not be affected by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless occurrence of any lawcircumstance (other than complete, regulation irrevocable payment) that might otherwise constitute a legal or order now equitable discharge or hereafter in effect in defense of a surety or guarantor. If SDA merges or consolidates with or into another entity, loses its separate legal identity or ceases to exist, or files any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company petition for bankruptcy or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoinginsolvency proceeding, the Parent agrees Guarantor shall nonetheless continue to be liable for the payment of all amounts payable by SDA under the Agreement and for the performance of all obligations of SDA under the Agreement.
(d) This Guaranty shall remain in full force and effect or shall be reinstated (as the case may be) if at any time any payment by SDA made pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or dischargedAgreement, in whole or in part, is rescinded or must otherwise affected be returned by the Beneficiary upon the insolvency, bankruptcy or reorganization of SDA or otherwise, all to the same extent as if that payment had not been made.
(e) So long as any amount payable by SDA under the Agreement is overdue and unpaid, the Guarantor shall not (i) the failure of Holder to assert any claim or demand or to enforce exercise any right of subrogation or remedy indemnity, or similar right or remedy, against the Company SDA or any other entity of its assets or other Person primarily property in respect of any amount paid by the Guarantor under this Guaranty or secondarily liable with respect to any of the Obligations; (ii) file a proof of claim in competition with the Beneficiary for any extensions, compromise, refinancing, consolidation or renewals of amount owing to the Guarantor by SDA on any Obligation; (iii) any change account whatsoever in the time, place or manner of payment of any event of the Obligations bankruptcy, insolvency or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications liquidation of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentSDA.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment Subject to section 2(b) hereof, each Guarantor hereby absolutely, irrevocably and Performance. The Parent hereby unconditionally guarantees ----------------------------------- to Holder the full and punctual prompt payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise)) of the Borrower Obligations. This Agreement constitutes a guaranty of payment and neither the Administrative Agent, the Issuing Bank nor any Lender shall have any obligation to enforce any Loan Document or any Interest Rate Protection Arrangement or exercise any right or remedy with respect to any collateral security thereunder by any action, including making or perfecting any claim against any Person or any collateral security for any of the Borrower Obligations, prior to being entitled to the benefits of this Agreement. The Administrative Agent may, at its option, proceed against the Guarantors, or any one or more of them, in the first instance, to enforce the Guarantor Obligations without first proceeding against the Borrower or any other Person, and without first resorting to any other rights or remedies, as well the Administrative Agent may deem advisable. In furtherance hereof, if the Administrative -3- Agent, the Issuing Bank or any Lender is prevented by law from collecting or otherwise hindered from collecting or otherwise enforcing any Borrower Obligation in accordance with its terms, the Administrative Agent, the Issuing Bank or such Lender, as the performancecase may be, shall be entitled to receive hereunder from the Guarantors after demand therefor, the sums which would have been otherwise due had such collection or enforcement not been prevented or hindered.
(b) Anything contained in this Agreement to the contrary notwithstanding, the obligations of all each Guarantor hereunder shall be limited to a maximum aggregate amount equal to the greatest amount that would not render such Guarantor's obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the indebtedness and other amounts owing under this Note United States Code or any provisions of applicable state law (collectively, the "ObligationsFraudulent Transfer Laws"), including in each case after giving effect to all other liabilities of such Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Guarantor (a) in respect of intercompany indebtedness to the Borrower or Affiliates of the Borrower to the extent that such indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder and (b) under any guarantee of senior unsecured indebtedness or Indebtedness subordinated in right of payment to the Obligations which would become due but for guarantee contains an assumption that indebtedness incurred under the operation Credit Agreement shall be deemed to have been incurred prior to any indebtedness incurred under any such guarantee or contains a limitation as to maximum amount similar to that set forth in this subsection, pursuant to which the liability of such Guarantor hereunder is included in the liabilities taken into account in determining such maximum amount) and after giving effect as assets to the value (as determined under the applicable provisions of the automatic stay Fraudulent Transfer Laws) of any rights ------------------------ to subrogation, contribution, reimbursement, indemnity or similar rights of such Guarantor pursuant to (S)362(ai) applicable law or (ii) any agreement providing for an equitable allocation among such Guarantor and other Affiliates of the Federal Bankruptcy Code and the operation Borrower of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to arising under guarantees by such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountparties.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and Each Guarantor agrees that the obligations Guarantor Obligations may at any time and from time to time exceed the maximum liability of such Guarantor hereunder without impairing this Agreement or affecting the rights and remedies of the Parent hereunder shall not be released or dischargedAdministrative Agent, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuing Bank or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentLender hereunder.
Appears in 1 contract
Guaranty. Guarantor hereby absolutely, irrevocably and unconditionally guaranties (ai) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment performance by Seller when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness covenants, agreements, and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of every nature under the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due Agreement and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made (ii) subject only to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest limitations thereon specifically set forth in (S)1 hereofthe Agreement, provided that if such interest exceeds the maximum amount permitted to be paid --------- accuracy and completeness of all representations and warranties of Seller under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generallyAgreement. Without limiting the generality of the foregoing, Guarantor hereby absolutely, irrevocably and unconditionally guaranties any and all of Seller's indemnification obligations under Section 11 of the Parent agrees to Agreement, including without limitation the provisions full and prompt payment when due of any instrument evidencingand all monies which may become due or payable at any time under or pursuant to such indemnification provisions. (The performance and indemnification obligations of Seller under the Agreement are herein, securing or otherwise executed in connection with any Obligation individually and collectively, referred to as the "Obligations".) Guarantor further agrees that the obligations following terms and conditions will apply to this Guaranty:
a. This Guaranty is in all respects continuing, absolute, and unconditional.
b. This Guaranty is a guaranty of both performance and payment when due, and not of collection.
c. Buyer may, from time to time, at Buyer's sole discretion and without notice to Guarantor, take any or all of the Parent hereunder shall not be released following actions:
i. Obtain or dischargedaccept a security interest in any property to secure payment of any or all of the Obligations;
ii. Obtain the primary or secondary obligation of any third party in addition to Guarantor with respect to any or all of the Obligations;
iii. Release, in whole or in partcompromise, extend, alter, or otherwise affected by (i) modify any of the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company Obligations or any obligation of any nature of any other entity or other Person primarily or secondarily liable obligor with respect to any of the Obligations; (ii) any extensions;
iv. Release, compromise, refinancingor extend any obligation of Guarantor hereunder;
v. Release any security interest in, consolidation or renewals of any Obligation; (iii) any change in the timesurrender, place release, or manner of permit any
vi. Resort to or proceed against Guarantor for performance or payment of any of the Obligations whether or not Buyer has proceeded against Seller or any rescissions, waivers, compromise, refinancing, consolidation other obligor primarily or other amendments or modifications of secondarily obligated with respect to any of the terms or provisions of this Note or Obligations, has resorted to any other agreement evidencing, property securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the additionor any obligation hereunder, substitution or release has pursued any other remedy.
d. As between Buyer and Guarantor, any amounts received by Buyer from whatsoever source on account of any entity Obligation (arising by whatever means) may be applied by Buyer toward the payment of any Obligation then due and payable, in such order of application as Buyer may from time to time elect; and, notwithstanding any performance or other person primarily payments made by or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or the account of Guarantor pursuant to this Guaranty, Guarantor will not be subrogated to any extent vary the risk rights of the Parent or otherwise operate Buyer until such time as a release or discharge of the Parent (other than the indefeasible Buyer has received performance and payment in full, in cash, full of all of the Obligations and performance of all obligations of Guarantor hereunder. Without limiting the generality of the foregoing, Guarantor agrees and acknowledges that if Buyer is required at any time to return all or any part of any payment applied by Buyer to the payment of the Obligations or any costs or expenses covered by this Guaranty, whether by virtue of the insolvency, bankruptcy, or reorganization of the Seller or otherwise, the Obligations to which the returned payment was applied will be deemed to have continued in existence and this Guaranty will continue to be effective or to be reinstated, as the case may be, as to such Obligations), as though such payment had not been received and such application by Buyer had not been made.
e. Guarantor hereby expressly waives:
(i) notice of the acceptance by Buyer of this Guaranty; (ii) notice of the existence, creation, release, compromise, extension, alteration, modification, non-performance, or non-payment of any or all of which may be done without the Obligations; (iii)presentment, demand, notice to of dishonor, protest, and all other notices whatsoever; and (iv) all diligence in collection of or realization upon any payments on, or assurance of performance of, any of the ParentObligations or any obligation hereunder, or in collection on, realization upon, or protection of any security for, or guaranty of, any of the Obligations or any obligation hereunder.
Appears in 1 contract
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as (b) any other sums which may become due under the performanceterms and provisions of the Notes, the Note Agreement or any other instrument referred to therein) and (c) the performance of all other obligations of the indebtedness and other amounts owing Company under this the Note Agreement, all such obligations described in clauses (collectively, the "Obligations"a), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(bb) and 506(b(c) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, upon demand of a holder, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment 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 Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including reasonable attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all reasonable expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein 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 Guarantor’s liability hereunder is joint and several with the other Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note Agreement. Notwithstanding the foregoing provisions or any other agreement evidencingprovision of this Guaranty Agreement, securing or otherwise executed in connection the holders (on behalf of themselves and their successors and assigns) and each Guarantor hereby agree that if at any time the Guaranteed Obligations exceed the Maximum Guaranteed Amount determined as of such time with any of regard to such Guarantor, then this Guaranty Agreement shall be automatically amended to reduce the Guaranteed Obligations made in accordance with to the terms hereof; (iv) Maximum Guaranteed Amount. Such amendment shall not require the addition, substitution or release written consent of any entity Guarantor or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or holder and shall be deemed to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice have been automatically consented to the Parent.by each
Appears in 1 contract
Guaranty. (a) Guaranty of Payment In order to induce Seller to enter into this Agreement, Globalstar hereby binds itself, on a joint and Performance. The Parent hereby guarantees ----------------------------------- to Holder several basis, with Buyer for the full performance by Buyer (or any affiliate or permitted successors or assigns thereof to whom rights or obligations are duly and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as validly assigned in conformity with the performance, terms and conditions hereof) of all indebtedness, obligations, and liabilities of Buyer to Seller of every kind, character, and description whatsoever, direct or indirect, absolute or contingent, liquidated or unliquidated, that arise or are asserted under either (i) this Agreement or (ii) the indebtedness b▇▇▇ of sale and other amounts owing assumption instruments to be executed and delivered by Buyer under this Note Agreement (collectively, the "Obligations"“Assumption Agreements”), including together with all such Obligations which would become due but for costs of collection, including, without limitation, reasonable attorneys’ fees and court costs (the operation of the automatic stay pursuant “Obligations”). All references to (S)362(a) of the Federal Bankruptcy Code this Agreement and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of Assumption Agreements include all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company subsequent amendments thereto or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Companymodifications thereof.
(b) Parent's Agreement to Pay Enforcement CostsThis is a continuing guaranty of payment, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor onlyof collection, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether which may be enforced before or after judgmentproceeding against Buyer and shall remain in effect until Seller duly and expressly notifies Globalstar in writing that (i) Buyer has performed all of its Obligations under this Agreement and the Assumption Agreements and that all such agreements have terminated or expired or (ii) Seller has expressly released Globalstar from its obligations under this Guaranty. Globalstar waives all pleas of discussion and division, at presentment and demand for payment from Seller, protests and notice of dishonor and all other notices not expressly required by this Agreement or the rate of interest set forth in (S)1 hereofAssumption Agreements, with it being deemed that any notice provided that if such interest exceeds the maximum amount permitted to be paid --------- Buyer under applicable law, then such interest this Agreement shall be reduced received by Globalstar. All notices to such maximum permitted amountGlobalstar shall be delivered by the same means provided under Section 14 of this Agreement. Globalstar agrees that the terms of this Agreement and the Assumption Agreements may be modified from time to time without reducing or in any way affecting the joint and several liability of Globalstar pursuant to this Guaranty. Such modifications may include, but are not limited to, extensions of time for performance of the Obligations by Buyer.
(c) Waivers This Guaranty shall inure to the benefit of the successors and assigns of Seller under this Agreement and the Assumption Agreements. No sale or transfer by Buyer of its interest in the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms Business or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder Purchased Assets shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentdiminish Globalstar’s obligations under this Guaranty.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment and Performance. The Parent Guarantor hereby unconditionally guarantees ----------------------------------- to Holder the full due and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all Obligations of Borrower from time to time outstanding, including without limitation the due and punctual payment of the indebtedness principal of and interest on the Loans made to Borrower pursuant to this Agreement and the due and punctual payment of all other amounts owing payable by Borrower under this Note Agreement or the other Loan Documents (collectively, the "Guaranteed Obligations"), including all such Obligations which would become due but for the operation . The obligations of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code Guarantor under this Section 12 and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, under any other Loan Document executed by Guarantor shall be unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holderabsolute and, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or dischargedreleased, in whole or in part, discharged or otherwise affected by by:
(i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (iia) any extensionsextension, renewal, settlement, compromise, refinancing, consolidation waiver or renewals release in respect of any Guaranteed Obligation of Borrower or the Collateral therefor under this Agreement or the other Loan Documents unless such extension, renewal, settlement, compromise, waiver or release expressly applies to any Guaranteed Obligation; ;
(iiib) any modification or amendment of or supplement to this Agreement or the other Loan Documents unless such modification, amendment or supplement expressly releases or discharges the Guaranteed Obligations;
(c) any change in the timecorporate existence, place structure or manner ownership of payment Borrower, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting Borrower or its Collateral or assets;
(d) the existence of any claim, set-off or other rights which Borrower may have at any time against Guarantor, the Agent, any Lender or any other Person, whether in connection herewith or any unrelated transactions, provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim;
(e) any invalidity or unenforceability for any reason of any provision or all of this Agreement or the other Loan Documents relating to or against Borrower, or any provision of applicable law or regulation purporting to prohibit the payment by Borrower of the Obligations principal of or interest on any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing amount payable by it under this Agreement or otherwise executed in connection with any of the Obligations made in accordance with the terms hereofother Loan Documents; or
(iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (vf) any other act or omission to act or delay of any kind by Borrower, Agent, any Lender or any other Person, or any other circumstance whatsoever which might might, but for the provisions of this paragraph, constitute a legal or equitable discharge of Borrower's obligations under this Agreement or the other Loan Documents. Guarantor's obligations under this Section 12 and under any other Loan Document executed by Guarantor shall remain in full force and effect until all Guaranteed Obligations shall have been paid in full and this Agreement and the other Loan Documents shall have terminated in accordance with their terms. If at any manner or to time any extent vary the risk payment of the Parent principal of or interest on any Note made by Borrower or any other amount payable by Borrower under this or the other Loan Documents is rescinded or must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of Borrower or otherwise, Guarantor's obligations under this Section 12 with respect to such payment shall be revived and continued in full force and effect. Guarantor irrevocably waives notice, presentment, protest, notice, demand or action on delinquency in respect of the Guaranteed Obligations or any part thereof, including any right to require the Agent or the Lenders to ▇▇▇ the Borrower, any other guarantor or any other Person obligated with respect to the Obligations or any part thereof, or otherwise operate as a release or discharge of to enforce payment thereof against any collateral securing the Parent (other than same. Until the indefeasible payment Obligations are paid in full, the Guarantor shall not exercise any right of subrogation, reimbursement, contribution or indemnity with respect to payments made by the Guarantor pursuant to this Section 12 or under any other Loan Document executed by Guarantor. In the event that the demand for payment of any amount payable by Borrower under this Agreement or the other Loan Documents is stayed upon the insolvency, bankruptcy or reorganization of Borrower, all such amounts otherwise subject to acceleration under the terms of this Agreement or the other Loan Documents shall nonetheless be payable by the Guarantor hereunder forthwith upon demand by the Agent. If in cashany action or proceeding involving any state, federal or foreign bankruptcy, insolvency or other law affecting the rights of all creditors generally, the obligations of Guarantor set forth in this Section 12 or under any other Loan Document executed by Guarantor would be held or determined to be void, invalid or unenforceable on account of the Obligations)amount of the aggregate liability of Guarantor hereunder, all then notwithstanding any other provision of which may be done without notice this Section 12 or under any other Loan Document executed by Guarantor to the Parentcontrary, the aggregate amount of Guarantor's liability shall, without any further action of Agent or any other Person, be automatically limited and reduced with respect to Guarantor to the highest amount which is valid and enforceable as determined in such action or proceeding."
Appears in 1 contract
Sources: Credit Agreement (Ladish Co Inc)
Guaranty. (a) Guaranty of Payment In order to induce Lenders to extend credit to Borrowers pursuant to the Credit Agreement and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full entry by Hedge Agreement Counterparties into the Secured Hedge Agreements, Guarantors jointly and severally irrevocably and unconditionally guaranty, as primary obligors and not merely as sureties, the due and punctual payment in full of all Guarantied Obligations (as hereinafter defined) when due (the same shall become due, whether at stated maturity, by required pre-paymentacceleration, by acceleration demand or otherwise), as well as the performance, of all of the indebtedness and other otherwise (including amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which that would become due but for the operation of the automatic stay pursuant to (S)362(aunder Section 362(a) of the Federal Bankruptcy Code Code, 11 U.S.C. Section 362(a) or any other Insolvency Laws, as the case may be). The term "GUARANTIED OBLIGATIONS" is used herein in its most comprehensive sense and includes any and all Obligations of Borrowers and all obligations of each Loan Party under the Secured Hedge Agreements, now or hereafter made, incurred or created, whether absolute or contingent, liquidated or unliquidated, whether due or not due, and however arising under or in connection with the Credit Agreement, the Secured Hedge Agreements, this Guaranty and the other Loan Documents, including those arising under successive borrowing transactions under the Credit Agreement which shall either continue such obligations of such Borrowers or from time to time renew them after they have been satisfied. Each Guarantor acknowledges that a portion of the Loans 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. Any interest on any portion of the Guarantied Obligations that accrues after the commencement of any proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of any Borrower or any other Loan Party (or, if interest on any portion of the Guarantied Obligations ceases to accrue by operation of (S)(S)502(b) and 506(b) law by reason of the Federal Bankruptcy Code. This guaranty is an absolutecommencement of said proceeding, unconditional and continuing guaranty such interest as would have accrued on such portion of the full 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 punctual payment and performance Guarantied Party that the Guarantied Obligations should be determined without Exh. XII-B-2 regard to any rule of law or order that may relieve any Borrower or any other Loan Party of any portion of such Guarantied Obligations. In the event that all or any portion of the Guarantied Obligations and not of their collectability only and is in no way conditioned upon paid by any requirement that Holder first attempt to collect Borrower or any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the ObligationsLoan Party, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent each Guarantor hereunder shall continue and remain in full force and effect or be made to reinstated, as the Holdercase may be, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, event that all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any part of such terms payment(s) is rescinded or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law recovered directly or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company indirectly from Guarantied Party or any other entity 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 Person primarily provisions of this Section 1, upon the failure of any Borrower or secondarily liable with respect any other Loan Party to pay any of the ObligationsGuarantied Obligations when and as the same shall become due, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in parteach Guarantor will upon demand pay, or otherwise affected by (i) the failure of Holder cause to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in fullbe paid, in cash, to Guarantied Party for the ratable benefit of all Beneficiaries, an amount equal to the aggregate of the unpaid Guarantied Obligations), all of which may be done without notice to the Parent.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise)Guarantor, as well a primary party and not as a surety, unconditionally and irrevocably guarantees the performance, of all of payment to the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance Lender of all of the Obligations due and not of their collectability owing if, and only and is in no way conditioned upon any requirement that Holder first attempt to collect any if, one or more of the following events or circumstances occurs: (Guarantor's obligation hereunder to pay the Obligations from being hereinafter referred to as the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the "Guaranteed Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required "):
(i) fraud by ▇▇▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made with respect to the HolderObligations;
(ii) a breach of warranty or representation by Borrower with respect to the Loan, in Borrower, the manner and at Site, Improvements or the place of payment specified therefor for payments hereunder Renovation Project which was known to be made by the Company.false when made;
(biii) Parent's Agreement any willful breach by Borrower of the provisions restricting amendments, terminations, cancellations or waivers with respect to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, the Key Lease as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereofSection 11.3 of the Loan Agreement or the provisions of Sections 11.5, provided that if such interest exceeds 11.7 or 11.9 of the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.Loan Agreement;
(civ) Waivers any misapplication or misappropriation by Borrower of rents collected under tenant leases, tenant security deposits, insurance proceeds, condemnation awards and/or other funds of the ParentBorrower; and
(v) any willful breach by Guarantor of its obligations hereunder. If any of the foregoing events or circumstances occurs as described above in this paragraph 1, Lender may, at its option, proceed directly and at once, without further notice, against the Guarantor hereunder, without proceeding against ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms▇▇, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity person or other Person primarily or secondarily liable Collateral with respect to any the Guaranteed Obligations. Any sums payable by Guarantor hereunder shall bear interest at the Default Rate from the date of demand until the date paid. This Guaranty shall survive and continue in full force and effect beyond and after the payment and satisfaction of the Obligations, Guaranteed Obligations and all suretyship defenses generally. Without limiting the generality Obligations of Borrower in the foregoing, the Parent agrees event Lender is required to the provisions disgorge or return any payment or property received as a result of any instrument evidencinglaws pertaining to preferences, securing fraudulent transfers or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentfraudulent conveyances.
Appears in 1 contract
Sources: Guaranty of Non Recourse Exceptions (Praecis Pharmaceuticals Inc)
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, Prepayment Premium, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or Exhibit 9.7 (to Master Note Purchase Agreement) optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations"), including Note Purchase Agreement or any other instrument referred to therein (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Purchase Agreement. Each default in payment 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 holder harmless from and against any damage, loss, cost or expense (but limited, in the case of attorneys’ fees and expenses, to the reasonable and documented out of pocket attorneys’ fees of one special counsel for, collectively, each other holder of a Note, taken as a whole) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Purchase Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Purchase Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Guaranty Agreement, in each case other than any damage, loss, cost or expense that resulted from (A) the bad faith, gross negligence or willful misconduct or breach of the Note Purchase Agreement or any Note by such holder of a Note or (B) a claim between a holder of a Note, on the one hand, and any holder of a Note, on the other hand (other than claims arising out of any act or omission by the Company and/or its Affiliates). Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes or the Note Purchase Agreement. Notwithstanding the foregoing provisions or any other agreement evidencingprovision of this Guaranty Agreement, securing or otherwise executed in connection the holders (on behalf of themselves and their successors and assigns) and each Guarantor hereby agree that if at any time the Guaranteed Obligations exceed the Maximum Guaranteed Amount determined as of such time with any of regard to such Guarantor, then this Guaranty Agreement shall be automatically amended to reduce the Guaranteed Obligations made in accordance with respect to such Guarantor to the terms hereof; (iv) Maximum Guaranteed Amount. Such amendment shall not require the addition, substitution or release written consent of any entity Guarantor or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or holder and shall be deemed to any extent vary have been automatically consented to by each Guarantor and each holder. Each Guarantor agrees that the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.Guaranteed
Appears in 1 contract
Sources: Master Note Purchase Agreement (BlackRock Private Credit Fund)
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Note Agreement, including the other Note Documents or any other instrument referred to therein, (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, pursuant to the requirements for payment specified in the Notes, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in partNote Agreement, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change Note Documents. Each default in the time, place or manner of payment 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 Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Agreement, the other Note Documents or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement, the other Note Documents or any other instrument referred to therein 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 Guarantor’s liability hereunder is joint and several with the other Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes, the Note Agreement, or the other Note Documents. Notwithstanding the foregoing provisions or any other agreement evidencingprovision of this Guaranty Agreement, securing or otherwise executed in connection the Purchasers (by their acceptance of this Guaranty Agreement, and on behalf of themselves and their successors and assigns) and each Guarantor hereby agrees that if at any time the Guaranteed Obligations exceed the Maximum Guaranteed Amount determined as of such time with any of regard to such Guarantor, then this Guaranty Agreement shall be automatically amended to reduce the Guaranteed Obligations made in accordance with to the terms hereof; (iv) Maximum Guaranteed Amount. Such amendment shall not require the addition, substitution or release written consent of any entity Guarantor or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or holder and shall be deemed to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice have been automatically consented to the Parent.by each Guarantor and each holder. Each
Appears in 1 contract
Sources: Note Purchase and Private Shelf Agreement (Primoris Services Corp)
Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- absolutely, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, to Holder Seller, the Company Group and their successors and permitted assigns, the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all payment obligations and Liabilities, covenants and agreements, in each case, required to be paid or reimbursed by Buyer under or relating to this Agreement (including the Earnout Payments contemplated in Exhibit E hereto) (in each case, subject to the terms hereof) (collectively, the “Guaranteed Obligations”), plus any reasonable and documented out-of-pocket expenses incurred by Sellers and the Parent Companies in connection with enforcing the payment and performance in full of the Guaranteed Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company by Buyer or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by agrees that the Parent hereunder shall be made to the Holderguaranty under this Section 13.20 is an absolute, in the manner unconditional, irrevocable, present and at the place continuing guarantee of payment specified therefor for payments hereunder and performance, not of collection, and Parent agrees that its obligations under this Section 13.20 shall not be discharged or impaired or otherwise affected, until the payment and performance in full of the Guaranteed Obligations by Buyer or Parent. In no event shall any Seller or Parent Company have any obligation to be made by the Companyproceed against Buyer before seeking satisfaction from Parent.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation covenants and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by either (i) the failure of Holder cause Buyer to assert any claim pay such amounts as and when it shall become due and payable or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made if not so paid by Buyer in accordance with the terms hereof; , pay or cause to be paid such amounts as required to be paid by Buyer in accordance with the terms of this Agreement.
(ivc) Notwithstanding anything to the additioncontrary contained in this Section 13.20 or otherwise, substitution the Sellers, Parent Companies and their respective Affiliates hereby agree that Parent shall have all defenses to its obligations under this guarantee that would be available to the Buyer. The guaranty contained in this Section 13.20 shall terminate automatically following the payment, discharge or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might satisfaction in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, full of all of the Guaranteed Obligations), all of which may be done without notice to the Parent.
Appears in 1 contract
Sources: Purchase Agreement (Gogo Inc.)
Guaranty. Reference is made to that certain employment agreement dated as of April 16, 1998, between Landmark Theatre Corp. (a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "ObligationsEmployer"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy CodePaul ▇. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b"▇mployee") Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; Rich▇▇▇▇▇▇ ▇▇▇ual Bonus Plan of Landmark Theatre Corp. (individually and collectively the "Agreement").
1. As a material inducement to Employee to enter into the Agreement, and in consideration of the benefits the undersigned guarantor ("Guarantor") will derive from the execution of the Agreement, Guarantor hereby unconditionally and irrevocably guarantees to Employee the full and timely performance of each and every contractual obligation of Employer under the Agreement, including, without limitation, all payment obligations (whether fixed, contingent, deferred, net profits or otherwise), all credit obligations and all indemnity obligations (collectively, the "Guaranteed Obligations"). Guarantor's Freedom obligations hereunder are direct and primary to ActEmployee and are independent of the obligations of the Employer and, in the event of any default hereunder, a separate action or actions may be brought and prosecuted against Guarantor irrespective of whether action is brought against the Employer or whether the Employer is joined in any such action or actions.
2. The Parent Guarantor agrees ---------------------------------------------- that any modification of the Obligations will be paid Agreement by the parties thereto shall not affect this Guaranty. Without further authorization from, demand upon or notice to Guarantor and performed strictly without affecting Guarantor's liability hereunder, the parties to the Agreement may, in accordance with their respective termsthe terms of the Agreement (i) alter, regardless compromise, accelerate, extend or change the time or manner of payment and/or performance of any lawof the Guaranteed Obligations; (ii) release or add any one or more guarantors or endorsers; or (iii) accept, regulation surrender, release, reconvey (partially or order otherwise), exchange or alter any security of any kind now or hereafter in effect given by Employer to secure the performance of the Guaranteed Obligations. No exercise or non-exercise by Employee of any right hereby given to him and no dealing by him with Employer or any guarantors or endorsers shall in any jurisdiction affecting way affect any of the duties or obligations of Guarantor except to the extent that such terms failure, omission or delay constitutes a waiver under the Agreement and is not otherwise waived by Guarantor herein. Guarantor acknowledges its obligations hereunder shall not be exonerated if, by any act of Employer, the remedies or rights of Holder with respect theretoEmployer against Employee are in any way impaired or suspended. The Parent Notwithstanding anything herein to the contrary, Guarantor does not waive any defense based upon the statute of limitations or fraud by Employee.
3. Guarantor hereby waives promptnessthe protection of, diligenceand any right to assert the provisions of California Civil Code Sections 2810, 2819, 2845, 2849 and 2850 or any other successor or like provisions of applicable law for the benefit of sureties or guarantors. Additionally, Guarantor hereby expressly waives (i) notice of the acceptance of this Guaranty; (ii) notice of the amount of indebtedness under the Agreement now existing or which may hereafter exist; (iii) notice of demand for payment and/or performance, notice of default, notice of nonpayment or nonperformance, presentment, demand, protest, notice of acceptance, protest and notice of any Obligations incurred and 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 dishonor of the Company Agreement or any other entity or other Person primarily or secondarily liable with respect to any of the Guaranteed Obligations; and (iv) notice of assignment, transfer, modification or negotiation of the Agreement.
4. The liability of Guarantor shall be unaffected by, and all suretyship defenses generally. Without limiting the generality of the foregoingGuarantor waives any defense arising out of, the Parent agrees relating to the provisions of any instrument evidencingor based upon, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) a change of ownership of or legal title to the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company Employer or any other entity rights therein or other Person primarily any rights under the Agreement, whether effected without or secondarily liable with respect to any without the consent of the ObligationsEmployee; (ii) any extensionsthe dissolution, compromisetermination, refinancinglegal incapacity, consolidation lack of authority, revocation, recission, disability, insolvency, bankruptcy or renewals reorganization of Employer or the defense of any statute of limitations in any action hereunder or for the collection or performance of any Guaranteed Obligation; (iii) any change in the time, place election of remedies or manner marshalling of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereofassets; (iv) the additionAgreement constituting a fraudulent transfer; (v) Employee failing to proceed against (or otherwise exercise any of its rights against) the Employer, substitution or release any other guarantor of the Guaranteed Obligations, or any other person, firm, corporation or other entity or failing to proceed against or exhaust any security held by him at any time or failing to pursue any other person primarily remedy in their power; (vi) Employee failing to disclose any facts regarding Employer regardless of whether they have reason to believe that any such facts materially increase the risk beyond that which Guarantor intends to assume or secondarily liable for any Obligationhave reason to believe that such facts are unknown to Guarantor or have a reasonable opportunity to communicate such facts to Guarantor; or (vvii) the dissolution or termination of Employer or Guarantor. This Guaranty shall continue to be effective or reinstated, as the case may be, if at any time payment of any amount paid under the Agreement is rescinded or otherwise returned by Employee upon or in connection with the insolvency, bankruptcy or reorganization of Employer (or any like or similar event), as if such amount had not been paid.
5. Employee's delay, omission or failure to file or enforce a claim against the assets and/or estate (either in administration, bankruptcy or any other act proceeding) of Guarantor, Employer or any third party shall not affect the liability of Guarantor under this Guaranty, except to the extent that such failure, omission or delay constitutes a waiver under the Agreement and is not otherwise waived by Guarantor herein. In the event that the maturity of any of the Guaranteed Obligations is accelerated, such maturity shall also be deemed accelerated for the purposes of this Guaranty.
6. Any indebtedness of Employer now or hereafter held by Guarantor is hereby subordinated to any indebtedness of Employer to Employee until such time as the Guaranteed Obligations have been indefeasibly satisfied in full and, to the extent necessary for that purpose, Guarantor hereby assigns to Employee its right to payments or distributions from Employer to which might Guarantor would otherwise be entitled. Until all of the Guaranteed Obligations have been performed in full, Guarantor shall have no right of subrogation against Employer unless it is expressly given to Guarantor in writing by Employee.
7. Guarantor agrees that Employee may, in its sole discretion, and without notice to Guarantor, apply all payments from Employer or any third party, or apply the proceeds realized from any security which may be held by Employee in such manner and order of priority as Employee see fit, all without affecting the liability of Guarantor. The obligations of Guarantor hereunder are independent of the obligations of Employer. Guarantor waives any right to require Employee to proceed against Employer, to apply or proceed against or exhaust any security held by Employee or to pursue any remedy in his power against Employer or any other party prior to, or concurrently with, proceeding against Guarantor. Employee may maintain a separate action against Employer without in any manner waiving or to compromising any extent vary the risk rights which he may have against Guarantor. Employee's rights hereunder are cumulative and shall not be exhausted by any number of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of successive actions until and unless all of the Obligations)guaranteed Obligations have been fully paid and performed.
8. In the event of any action for breach of or to enforce this Guaranty, Employee shall be entitled to recover all costs of which may be done suit, including without notice limitation, reasonable attorney's fees.
9. This Guaranty shall inure to the Parentbenefit of Employee and his successors and assigns. Employee may assign his rights under this Guaranty pursuant to the terms of the assignment provisions of the Agreement.
10. Except as otherwise set forth herein, Guarantor's obligations under this Guaranty are subject to all defenses which Employer may have against Employee with respect to the enforcement of the Guaranteed Obligations.
11. This Guaranty shall be governed by California law and Guarantor submits to the exclusive jurisdiction of its courts, including the federal courts within California.
Appears in 1 contract
Guaranty. (a) Guaranty As an inducement for Purchaser to enter into this Agreement and for other good and valuable consideration, the receipt and legal sufficiency of Payment and Performance. The Parent which are hereby guarantees ----------------------------------- to Holder the full and punctual payment when due acknowledged, NorthStar Healthcare Income Operating Partnership LP, a Delaware limited partnership (whether at stated maturity, by required pre-payment, by acceleration or otherwise“Guarantor”), an affiliate of Seller who will derive a direct or indirect benefit in connection with this Agreement, hereby absolutely, irrevocably and unconditionally guarantees to Purchaser (as well as set forth in this Section 38) the performance, prompt payment and performance by Seller of all its obligations to Purchaser under Section 10(h) of the indebtedness and other amounts owing under this Note Agreement (collectively, the "“Guaranteed Obligations"), including all such Obligations which would become due but for ”) as and when the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately same shall be due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; of this Agreement and unconditionally covenants and agrees that it is liable for the Guaranteed Obligations as a primary obligor. The guaranty set forth above in this Section 38 (ivthe “Guaranty”) the additionis an irrevocable, substitution absolute, continuing guaranty of prompt payment and performance and not a guaranty of collection. The obligations of Guarantor under this Guaranty shall be primary, irrevocable, direct and immediate and not conditional or release contingent upon pursuit by Purchaser of any entity remedies it may have against Seller under this Agreement or other person primarily or secondarily liable for any Obligation; or (v) remedies it might have against any other act person. This Guaranty may not be revoked by Guarantor and shall continue to be effective with respect to any Guaranteed Obligations arising or omission which might created after any attempted revocation by Guarantor. The fact that at any time or from time to time the Guaranteed Obligations may be increased or reduced or otherwise modified in any manner or to any extent vary shall not release, diminish or discharge the risk obligation of Guarantor to Purchaser with respect to the Guaranteed Obligations. This Guaranty may be enforced by Purchaser and its successors and assigns. If all or any part of the Parent Guaranteed Obligations shall not be paid when due, Guarantor shall, on demand therefor and without other presentment, protest, notice of protest, notice of non-payment, notice of intention to accelerate, notice of acceleration, or otherwise operate as a release or discharge any other notice whatsoever, all such notices being hereby waived by Guarantor, pay (within ten (10) business days of demand) in lawful money of the Parent United States of America, the amount due on the Guaranteed Obligations to Purchaser.
(other b) For a period of [***] following the Closing Date, Guarantor shall maintain (i) a net worth of not less than [***] (the indefeasible payment “Net Worth Threshold”) and (ii) Liquid Assets of not less than [***] (the “Liquid Assets Threshold”). As used here in fullthe term “Liquid Assets” shall mean any of the following, in cashbut only to the extent owned by Guarantor, free of all security interests, liens, pledges, charges or any other encumbrance: (i) cash in United States dollars, (ii) certificates of the Obligations)deposit (with a maturity of two years or less) issued by, all of which may be done without notice or savings account with, any United States bank, or (c) marketable securities listed on a national or international exchange, marked to the Parentmarket.
Appears in 1 contract
Sources: Portfolio Acquisition Agreement (NorthStar Healthcare Income, Inc.)
Guaranty. (a) Guaranty Each Guarantor, jointly and severally with each other Guarantor, unconditionally and irrevocably guarantees to the Holders the due, prompt and complete payment by the Company of Payment the principal of, make-whole amount, if any, and Performance. The Parent hereby guarantees ----------------------------------- to Holder interest on, and each other amount due under, the full Notes or the Note Purchase Agreement, when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise) in accordance with the terms of the Notes and the Note Purchase Agreement (the Notes and the Note Purchase Agreement being sometimes hereinafter collectively referred to as the “Note Documents” and the amounts payable by the Company under the Note Documents, and all other monetary obligations of the Company thereunder (including any attorneys’ fees and expenses), as well being sometimes collectively hereinafter referred to as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "“Obligations"”), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty Guaranty is an absolute, unconditional and continuing a guaranty of the full and punctual payment and performance not just of all of the Obligations and not of their collectability only collectibility and is in no way conditioned or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to upon any collateral security other event, contingency or other means of obtaining paymentcircumstance whatsoever. Should If for any reason whatsoever the Company default in shall fail or be unable duly, punctually and fully to pay such amounts as and when the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, same shall become immediately due and payable to Holderpayable, each Guarantor, without demand demand, presentment, protest or notice of any naturekind, all of which are expressly waived by the Parent. Payments by the Parent hereunder may will forthwith pay or cause to be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made paid such amounts to the HolderHolders under the terms of such Note Documents, in lawful money of the manner and United States, at the place of payment specified therefor for payments hereunder in the Note Purchase Agreement, or perform or comply with the same or cause the same to be made by performed or complied with, together with interest (to the extent provided for under such Note Documents) on any amount due and owing from the Company.
(b) Parent's Agreement to Pay Enforcement Costs. Each Guarantor, etc. The Parent ------------------------------------------------ further agreespromptly after demand, as the principal obligor and not as a guarantor only, to will pay to Holder, on demand, all the Holders the reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when collecting such amounts become due until paymentor otherwise enforcing this Guaranty, whether before or after judgmentincluding, at without limitation, the rate reasonable fees and expenses of interest set forth in (S)1 hereofcounsel. Notwithstanding the foregoing, provided that if such interest exceeds the maximum amount permitted right of recovery against each Guarantor under this Guaranty is limited to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable extent it is judicially determined with respect to any Guarantor that entering into this Guaranty would violate Section 548 of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the United States Bankruptcy Code or any comparable provisions of any instrument evidencingstate law, securing or otherwise executed in connection with any Obligation and agrees which case such Guarantor shall be liable under this Guaranty only for amounts aggregating up to the largest amount that the would not render such Guarantor’s obligations hereunder subject to avoidance under Section 548 of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company United States Bankruptcy Code or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals comparable provisions of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentstate law.
Appears in 1 contract
Sources: Guaranty (Tetra Technologies Inc)
Guaranty. (a) Guaranty of Payment The Guarantor hereby irrevocably and Performance. The Parent hereby unconditionally, guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all payment obligations of the indebtedness Obligors under the Credit Agreement, up to a maximum amount as to principal of US$225,000,000 plus all interest, fees, indemnities and other amounts owing payable under this Note (collectively, the "Obligations")Credit Agreement, including all such Obligations which amounts that would become due but for the operation of the automatic stay pursuant to (S)362(aunder Section 362(c) of the Federal United States Bankruptcy Code and or similar provisions under the operation of (S)(S)502(b) and 506(b) laws of the Federal Bankruptcy CodeBahamas, The Netherlands, the United Mexican States or other applicable law (collectively, the "Guaranteed Obligations"). This guaranty is an absolute, unconditional and continuing guaranty of In the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement event that Holder first attempt to collect any of the ---------------------- Guaranteed Obligations from the Company or resort to shall not be paid when due within any collateral security or other means of obtaining payment. Should the Company default specified grace period provided for in the payment or performance of any of the ObligationsCredit Agreement, the obligations of Guarantor agrees to pay such Guaranteed Obligations within ten Business Days after the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived giving by the Parent. Payments Administrative Agent to the Guarantor and the Process Agent named in Section 15 hereof of written notice (a "Demand") demanding payment by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the HolderGuarantor, provided that in the manner and at the place of event any such payment specified therefor for payments hereunder is required to be made by the Company-------- Guarantor hereunder, the Guarantor may cause such obligation or liability to be paid on its behalf by any corporation affiliated with it, including the Obligors, provided that the Guarantor shall nevertheless be unconditionally obligated to pay such obligation or liability if such affiliate, including the Obligors, shall fail timely to pay such obligation or liability.
(b) Parent's Agreement to Pay Enforcement Costs, etcThis Guaranty is a guarantee of payment and not of performance or collection. The Parent ------------------------------------------------ further agrees, obligation of the Guarantor hereunder shall be independent of the obligation of any other Guarantor (as such term is defined in the principal obligor and not as a guarantor only, to pay to Holder, on demandCredit Agreement), all reasonable costs such obligations being joint and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountseveral.
(c) Waivers The Guarantor shall be subrogated to all rights of the Banks against the Obligors in respect of any amounts paid by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees Guarantor pursuant to the provisions of any instrument evidencingthis Guaranty; provided, securing or otherwise executed in connection with any Obligation and agrees however, that the obligations of the Parent hereunder Guarantor shall not -------- ------- be released entitled to enforce or discharged, in whole or in partreceive any payments arising out of, or otherwise affected by (i) based upon, such right of subrogation until all the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change Guaranteed Obligations shall have been irrevocably and indefeasibly paid in full and no Guaranteed Obligations may arise in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentfuture.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all In consideration of the indebtedness Partnership having entered into or hereinafter entering into transactions with the Obligor pursuant to the Contribution Agreement, including the Gathering Agreement and other amounts owing the Processing Agreement, and the Guaranteed Party’s execution, delivery and performance of the Contribution Agreement, the Gathering Agreement and the Processing Agreement, the Guarantor absolutely, irrevocably and unconditionally guarantees to the Guaranteed Party, its successors and assigns, the Obligor’s obligations to the Guaranteed Party under this Note the Contribution Agreement, the Gathering Agreement and the Processing Agreement, which were entered into on the Effective Date (collectively, the "Obligations"“Agreements”), including all such Obligations which would become due but for with respect to (i) the operation payment of the automatic stay Capital RR Adjustment Amount pursuant to (S)362(aand in accordance with Section 5.5(c) of the Federal Bankruptcy Code Contribution Agreement (the “Capital RR Obligation”), (ii) the Obligor’s obligations to pay the revenue obligations to the Partnership pursuant to the Gathering Agreement and the operation Processing Agreement for any month, on the terms and subject to the conditions set forth in the Gathering Agreement and the Processing Agreement (the “TOP Obligations”), and (iii) the Obligor’s obligations to deliver the purchase price of the Compression Assets to the Guaranteed Party pursuant to and in accordance with Section 4.5 of the Contribution Agreement (S)(S)502(bthe “Compression Purchase Obligation”) (the Capital RR Obligation, the TOP Obligations and the Compression Purchase Obligation being collectively referred to herein as the “Obligations”).
(b) This Guaranty is a continuing guaranty and shall remain in full force and effect until the indefeasible payment in cash of all Obligations. Subject to Section 1(c) and 506(b) Section 4 of the Federal Bankruptcy Code. This guaranty is an absolutethis Guaranty, unconditional and continuing guaranty of the full and punctual payment and performance of all of at such time as the Obligations and not of their collectability only and is have been indefeasibly paid in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default full in the payment or performance of any of the Obligationscash, the obligations of the Parent Guarantor and the Guaranteed Party hereunder with respect to such Obligations in default shallshall terminate, upon demand by Holder, become immediately due and payable to Holder, all without demand or notice delivery of any nature, all instrument or performance of which are expressly waived any act by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountparty.
(c) Waivers This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any Obligation is rescinded or must otherwise be returned by the Parent; ▇▇▇▇▇▇'s Freedom Guaranteed Party as a result of the insolvency, bankruptcy or reorganization of the Obligor or otherwise, all as though such payment had not been made, and the Guarantor will pay such amount to Actthe Guaranteed Party on demand. The Parent agrees ---------------------------------------------- Any transfer by subrogation that the Obligations will be paid and performed strictly is made as contemplated in accordance with their respective terms, Section 4 prior to any such payment shall (regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any the terms of such terms or transfer) be automatically voided upon the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice making of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law such payment or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligationspayments, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees rights so transferred shall thereupon automatically revert to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change vested in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentGuaranteed Party.
Appears in 1 contract
Sources: Guaranty (Quicksilver Resources Inc)
Guaranty. The Guarantor hereby irrevocably and unconditionally guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make‑Whole Amount, if any, Modified Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Note Agreement or any other instrument referred to therein, including (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity guarantor of the Notes or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting the generality Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment 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. The Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement. The Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by the Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Guaranty Agreement. The Guarantor hereby acknowledges and agrees that the Guarantor’s liability hereunder is joint and several with any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment Subject to Section 2(b) hereof, each Guarantor jointly and Performance. The Parent severally with each other Guarantor hereby absolutely, irrevocably and unconditionally guarantees ----------------------------------- to Holder the full and punctual prompt payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy CodeBorrower Obligations. This guaranty is an absolute, unconditional and continuing Agreement constitutes a guaranty of payment, and neither the full and punctual payment and performance of all of Agent, the Obligations and not of their collectability only and is in no way conditioned upon Issuer nor any requirement that Holder first attempt Lender shall have any obligation to collect enforce any of the Obligations from the Company Loan Document or resort any Interest Rate Protection Arrangement or exercise any right or remedy with respect to any collateral security thereunder by any action, including making or other means of obtaining payment. Should the Company default in the payment perfecting any claim against any Person or performance of any collateral security for any of the Obligations, the obligations of the Parent hereunder with respect Borrower Obligations prior to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made being entitled to the Holderbenefits of this Agreement. The Agent may, at its option, proceed against the Guarantors, or any one or more of them, in the manner first instance, to enforce the Guarantor Obligations without first proceeding against the Borrower or any other Person, and at without first resorting to any other rights or remedies, as the place of payment specified therefor for payments Agent may deem advisable. In furtherance hereof, if the Agent, the Issuer or any Lender is prevented by law from collecting or otherwise hindered from collecting or otherwise enforcing any Borrower Obligation in accordance with its terms, the Agent, the Issuer or such Lender, as the case may be, shall be entitled to receive hereunder to be made by from the CompanyGuarantors after demand therefor, the sums which would have been otherwise due had such collection or enforcement not been prevented or hindered.
(b) Parent's Agreement Notwithstanding anything to Pay Enforcement Coststhe contrary contained in this Agreement, etc. The Parent ------------------------------------------------ further agreesthe maximum liability of each Guarantor hereunder shall not, as of any date of determination, exceed the principal obligor lesser of (i) the highest amount that is valid and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost enforceable against such Guarantor under principles of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable New York State contract law, then and (ii) the sum of (A) all Consideration received by such interest shall be reduced to Guarantor as of such maximum permitted amountdate of determination, plus (B) 95% of the Net Worth of such Guarantor on such date of determination.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and Each Guarantor agrees that the obligations Guarantor Obligations may at any time and from time to time exceed the maximum liability of such Guarantor hereunder without impairing this Agreement or affecting the rights and remedies of the Parent hereunder shall not be released or dischargedAgent, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentLender hereunder.
Appears in 1 contract
Sources: Guaranty and Security Agreement (Video Services Corp)
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to (a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder each Holder, the full due and punctual payment in full of the principal of, Make-Whole Amount, if any, and interest 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 any other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise)) and (b) to each Holder, as well as any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations"), including Note Agreement or any other instrument referred to therein (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the Holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment 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 pursuant to the Note Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each Holder harmless from and against any damage, loss, cost or expense (including reasonable attorneys’ fees) which such Holder may incur or be subject to as a consequence, direct or indirect, of (1) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (2) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (3) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 1 contract
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Yield Maintenance Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment 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 Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Shelf Agreement or any other instrument referred to therein, including (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Shelf Agreement. Each default in payment 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 Shelf Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Shelf Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Shelf Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentShelf Agreement.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment The Guarantor hereby irrevocably and Performance. The Parent hereby unconditionally, guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all payment obligations of the indebtedness Borrower under the Credit Agreement, up to a maximum amount as to principal of US$225,000,000 plus all interest, fees, indemnities and other amounts owing payable under this Note (collectively, the "Obligations")Credit Agreement, including all such Obligations which amounts that would become due but for the operation of the automatic stay pursuant to (S)362(aunder Section 362(c) of the Federal United States Bankruptcy Code and or similar provisions under the operation of (S)(S)502(b) and 506(b) laws of the Federal Bankruptcy CodeBahamas, The Netherlands, the United Mexican States or other applicable law (collectively, the "Guaranteed ---------- Obligations"). This guaranty is an absolute, unconditional and continuing guaranty of In the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement event that Holder first attempt to collect any of the Guaranteed Obligations from the Company or resort to shall not be ----------- paid when due within any collateral security or other means of obtaining payment. Should the Company default specified grace period provided for in the payment or performance of any of the ObligationsCredit Agreement, the obligations of Guarantor agrees to pay such Guaranteed Obligations within ten Business Days after the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived giving by the Parent. Payments Administrative Agent to the Guarantor Notice Agent named in Section 20 hereof and the Process Agent named in Section 15 hereof of notice (a "Demand") demanding payment by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the HolderGuarantor, provided -------- that in the manner and at the place of event any such payment specified therefor for payments hereunder is required to be made by the CompanyGuarantor hereunder, the Guarantor may cause such obligation or liability to be paid on its behalf by any corporation affiliated with it, including the Obligors, provided that the Guarantor shall nevertheless be unconditionally obligated to pay such obligation or liability if such affiliate, including the Obligors, shall fail timely to pay such obligation or liability.
(b) Parent's Agreement to Pay Enforcement Costs, etcThis Guaranty is a guarantee of payment and not of performance or collection. The Parent ------------------------------------------------ further agrees, obligation of the Guarantor hereunder shall be independent of the obligation of any other Guarantor (as such term is defined in the principal obligor and not as a guarantor only, to pay to Holder, on demandCredit Agreement), all reasonable costs such obligations being joint and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountseveral.
(c) Waivers The Guarantor shall be subrogated to all rights of the Banks against the Obligors in respect of any amounts paid by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees Guarantor pursuant to the provisions of any instrument evidencingthis Guaranty; provided, securing or otherwise executed in connection with any Obligation and agrees however, that the obligations of the Parent hereunder Guarantor shall not -------- ------- be released entitled to enforce or discharged, in whole or in partreceive any payments arising out of, or otherwise affected by (i) based upon, such right of subrogation until all the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change Guaranteed Obligations shall have been irrevocably and indefeasibly paid in full and no Guaranteed Obligations may arise in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentfuture.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual Company's payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing obligations under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay are guaranteed pursuant to (S)362(a) that certain Unconditional Guaranty issued by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ in favor of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇▇▇▇ on any number of occasionsor about the date hereof. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; By : Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇ Title: Manager ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (together, "▇▇▇▇▇▇▇▇▇") and Clip Interactive, LLC, a Colorado limited liability company ("Company") are parties to that certain Collateral and Security Agreement dated as of April_, 2018 (the "Agreement") (attached hereto as EXHIBIT A) with respect to certain cash collateral provided by ▇▇▇▇▇▇▇▇▇ in support of a loan facility provided by Bank of the West ("Lender") to Company. Pursuant to the terms of the Agreement, Company shall issue a promissory note to ▇▇▇▇▇▇▇▇▇ (the "Note") as evidence of Company's Freedom obligation to Actrepay ▇▇▇▇▇▇▇▇▇ the amount of cash collateral applied by Lender to repay such loans. The Parent agrees ---------------------------------------------- This Unconditional Guaranty shall be issued and effective upon the execution and delivery of the Agreement by the parties thereto. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ("Guarantor") has agreed to guaranty the Company's obligations under the Note issued pursuant to the Agreement. All terms used without definition in this Guaranty shall have the meaning assigned to them in the Agreement.
1. Guarantor hereby unconditionally and irrevocably guarantees the prompt and complete payment of all amounts that Company owes to ▇▇▇▇▇▇▇▇▇ under the Obligations will be paid and performed strictly Note in strict accordance with their respective its terms. If Company does not pay any amount owing to ▇▇▇▇▇▇▇▇▇ under the Note, regardless Guarantor shall immediately pay all amounts due to ▇▇▇▇▇▇▇▇▇ under the Note.
2. Until all of the amounts that Company owes to ▇▇▇▇▇▇▇▇▇ under the Note have been paid in full, Guarantor shall have no right of subrogation or reimbursement, contribution or other rights against Company, and Guarantor waives any law, regulation right to enforce any remedy that ▇▇▇▇▇▇▇▇▇ now has or order may hereafter have against Company.
3. Any indebtedness of Company now or hereafter in effect held by Guarantor is hereby subordinated to the repayment of obligations under the Note owing by Company to ▇▇▇▇▇▇▇▇▇; and such indebtedness of Company to Guarantor shall be collected, enforced and received by Guarantor as trustee for ▇▇▇▇▇▇▇▇▇ and be paid over to ▇▇▇▇▇▇▇▇▇ on account of the indebtedness of Company to ▇▇▇▇▇▇▇▇▇ but without reducing or affecting in any jurisdiction affecting manner the liability of Guarantor under the other provisions of this Guaranty. Guarantor subordinates to ▇▇▇▇▇▇▇▇▇ any of such terms security interests, liens or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law encumbrances now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligationssecuring Company's personal property (including accounts receivable), and all suretyship defenses generallyright, title, security interest, and other interest that Guarantor may have or hereafter acquire in and to Company's personal property. Without limiting The security interest of ▇▇▇▇▇▇▇▇▇ in Company's personal property (including accounts receivable) shall be and remain at all times a security interest prior and superior to the generality security interest of Guarantor in Company's personal property.
4. Guarantor waives all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, and notices of acceptance of this Guaranty and of the foregoingexistence, creation, or incurring of new or additional indebtedness.
5. If Company becomes insolvent or is adjudicated bankrupt or files a petition for reorganization, arrangement, composition or similar relief under any present or future provision of the Parent agrees to the provisions United States Bankruptcy Code, or if such a petition is filed against Company, and in any such proceeding some or all of any instrument evidencingindebtedness or obligations under the Note are terminated or rejected or any obligation of Company is modified or abrogated, securing or if Company's obligations are otherwise executed in connection with avoided for any Obligation and reason, Guarantor agrees that the obligations of the Parent Guarantor's liability hereunder shall not thereby be released affected or dischargedI modified and such liability shall continue in full force and effect as if no such action or proceeding had I occurred. This Guaranty shall continue to be effective or be reinstated, in whole as the case may be, if any payment must be returned by ▇▇▇▇▇▇▇▇▇ upon the insolvency, bankruptcy or in partreorganization of Company, Guarantor, any other guarantor, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensionsotherwise, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of as though such payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the had not been made.
6. No terms or provisions of this Guaranty may be changed, waived, revoked or amended without Guarantor's and ▇▇▇▇▇▇▇▇▇'▇ prior written consent. Should any provision of this Guaranty be determined by a court of competent jurisdiction to be unenforceable, all of the other provisions shall remain effective.
7. This Guaranty embodies the entire agreement among the parties hereto with respect to the matters set forth herein, and supersedes all prior Note among the parties with respect to the matters set forth herein. No course of prior dealing among the parties, no usage of trade, and no parol or extrinsic evidence of any other agreement evidencingnature shall be used to supplement, securing modify or otherwise executed in connection with vary any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice . There are no conditions to the Parentfull effectiveness of this Guaranty.
Appears in 1 contract
Sources: Collateral and Security Agreement (Clip Interactive, LLC)
Guaranty. (a) Guaranty The Guarantor unconditionally and irrevocably guarantees to the Holders the due, prompt and complete payment by the Issuer of Payment the principal of, make-whole amount, prepayment premium or breakage costs, if any, and Performance. The Parent hereby guarantees ----------------------------------- to Holder interest on, and each other amount due under, the full Notes or the Note Purchase Agreement, when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise) in accordance with the terms of the Notes and the Note Purchase Agreement (the Notes and the Note Purchase Agreement being sometimes hereinafter collectively referred to as the “Note Documents” and the amounts payable by the Issuer under the Note Documents, and all other monetary obligations of the Issuer thereunder (including any attorneys’ fees and expenses), as well being sometimes collectively hereinafter referred to as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "“Obligations"”), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty Guaranty is an absolute, unconditional and continuing a guaranty of the full and punctual payment and performance not just of all of the Obligations and not of their collectability only and is in no way conditioned or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company Issuer or resort upon any other event, contingency or circumstance whatsoever. If for any reason whatsoever the Issuer shall fail or be unable duly, punctually and fully to any collateral security or other means of obtaining payment. Should pay such amounts as and when the Company default in the payment or performance of any of the Obligationssame shall become due and payable, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to HolderGuarantor, without demand demand, presentment, protest or notice of any naturekind, all of which are expressly waived by the Parent. Payments by the Parent hereunder may will forthwith pay or cause to be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made paid such amounts to the HolderHolders under the terms of such Note Documents, in lawful money of the manner and United States, at the place of payment specified therefor for payments hereunder in the Note Purchase Agreement, or perform or comply with the same or cause the same to be made by performed or complied with, together with interest (to the Company.
(bextent provided for under such Note Documents) Parent's Agreement to Pay Enforcement Costs, etcon any amount due and owing from the Issuer. The Parent ------------------------------------------------ further agreesGuarantor, as the principal obligor and not as a guarantor onlypromptly after demand, to will pay to Holder, on demand, all the Holders the reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when collecting such amounts become due until paymentor otherwise enforcing this Guaranty, whether before or after judgmentincluding, at without limitation, the rate reasonable fees and expenses of interest set forth in (S)1 hereofcounsel. Notwithstanding the foregoing, provided that if such interest exceeds the maximum amount permitted right of recovery against the Guarantor under this Guaranty is limited to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 the Company or any other entity or other Person primarily or secondarily liable extent it is judicially determined with respect to any Guarantor that entering into this Guaranty would violate Section 548 of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the United States Bankruptcy Code or any comparable provisions of any instrument evidencingstate law, securing or otherwise executed in connection with any Obligation and agrees which case such Guarantor shall be liable under this Guaranty only for amounts aggregating up to the largest amount that the would not render such Guarantor’s obligations hereunder subject to avoidance under Section 548 of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company United States Bankruptcy Code or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals comparable provisions of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentstate law.
Appears in 1 contract
Sources: Note Purchase Agreement (El Paso Pipeline Partners, L.P.)
Guaranty. (a) Guaranty of Payment The Borrower unconditionally and Performance. The Parent hereby irrevocably guarantees ----------------------------------- to Holder the full and Bank the punctual payment of all sums now owing or which may in the future be owing by any Direct Foreign Subsidiary under the Foreign Subsidiary Credit Lines, when the same are due (and payable, whether on demand, at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performanceand whether for principal, of interest, fees, expenses, indemnification or otherwise (all of the indebtedness and other amounts owing foregoing sums being the “Guaranteed Liabilities”). The Guaranteed Liabilities include, without limitation, interest accruing after the commencement of a proceeding under this Note bankruptcy, insolvency or similar laws of any jurisdiction at the rate or rates provided in the documents executed in connection with the Foreign Subsidiary Credit Lines (collectively, the "Obligations"“Foreign Credit Documents”), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing a guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collection. The Bank shall not be required to exhaust any right or remedy or take any action against any Direct Foreign Subsidiary or any other person or entity or any collateral. The Borrower agrees that, as between the Borrower and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the ObligationsBank, the obligations of the Parent hereunder with respect Guaranteed Liabilities may be declared to such Obligations in default shall, upon demand by Holder, become immediately be due and payable to Holderfor the purposes of this guaranty notwithstanding any stay, without demand injunction or notice other prohibition which may prevent, delay or vitiate any declaration as regards any Direct Foreign Subsidiary and that in the event of any naturea declaration or attempted declaration, all of which are expressly waived the Guaranteed Liabilities shall immediately become due and payable by the Parent. Payments by Borrower for the Parent hereunder may be required by ▇▇▇▇▇▇ on any number purposes of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Companythis guaranty.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as Borrower guarantees that the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to Guaranteed Liabilities shall be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless the terms of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect theretoForeign Subsidiary Credit Lines. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and 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 liability of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, Borrower under this Section 3.1 is absolute and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by unconditional irrespective of: (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iiia) any change in the time, manner or place of payment of, or manner in any other term of, all or any of the Foreign Credit Documents or Guaranteed Liabilities, or any other amendment or waiver of or any consent to departure from any of the terms of any Foreign Credit Document or Guaranteed Liability, including any increase or decrease in the rate of interest thereon; (b) any release or amendment or waiver of, or consent to departure from, any other guaranty or support document, or any exchange, release or non-perfection of any collateral, for all or any of the Foreign Credit Documents or Guaranteed Liabilities; (c) any present or future law, regulation or order of any jurisdiction (whether of right or in fact) or of any agency thereof purporting to reduce, amend, restructure or otherwise affect any term of any Foreign Credit Document or Guaranteed Liability; (d) without being limited by the foregoing, any lack of validity or enforceability of any Foreign Credit Documents or Guaranteed Liabilities; and (e) any other setoff, defense or counterclaim whatsoever (in any case, whether based on contract, tort or any other theory) with respect to the Foreign Credit Documents or the transactions contemplated thereby which might constitute a legal or equitable defense available to, or discharge of, any Direct Foreign Subsidiary or a guarantor.
(c) The guaranty under this Section 3.1 is a continuing guaranty of the payment of all Guaranteed Liabilities now or hereafter existing under the Foreign Subsidiary Credit Lines and shall remain in full force and effect until payment in full of all Guaranteed Liabilities and until the Foreign Subsidiary Credit Lines are no longer in effect.
(d) The guaranty under this Section 3.1 shall continue to be effective or be reinstated, as the case may be, if at any time any payment of any of the Obligations Guaranteed Liabilities is rescinded or must otherwise be returned by the Bank on the insolvency, bankruptcy or reorganization of the Borrower or otherwise, all as though the payment had not been made.
(e) All payments by the Borrower shall be made in the manner, at the place and in the currency (the “Payment Currency”) required by the Foreign Credit Documents; provided, however, that (if the Payment Currency is other than U.S. dollars) the Borrower may, at its option (or, if for any rescissionsreason whatsoever the Borrower is unable to effect payments in the foregoing manner, waiversthe Borrower shall be obligated to) pay to the Bank at its principal office the equivalent amount in U.S. dollars computed at the selling rate of the Bank or a selling rate chosen by the Bank, compromisemost recently in effect on or prior to the date the Guaranteed Liability becomes due, refinancingfor cable transfers of the Payment Currency to the place where the Guaranteed Liability is payable. In any case in which the Borrower makes or is obligated to make payment in U.S. Dollars, consolidation the Borrower shall hold the Bank harmless from any loss incurred by the Bank arising from any change in the value of U.S. Dollars in relation to the Payment Currency between the date the Guaranteed Liability becomes due and the date the Bank is actually able, following the conversion of the U.S. Dollars paid by the Borrower into the Payment Currency and remittance of such Payment Currency to the place where such Guaranteed Liability is payable, to apply such Payment Currency to such Guaranteed Liability.
(f) The Borrower further agrees that all payments to be made under this Section 3.1 shall be made without setoff or other amendments counterclaim and free and clear of, and without deduction for, any taxes, levies, imposts, duties, charges, fees, deductions, withholdings or modifications restrictions or conditions of any nature whatsoever now or hereafter imposed, levied, collected, withheld or assessed by any country or by any political subdivision or taxing authority thereof or therein (“Taxes”). If any Taxes are required to be withheld from any amounts payable to the Bank hereunder, the amounts so payable to the Bank shall be increased to the extent necessary to yield to the Bank (after payment of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (ivall Taxes) the additionamounts payable hereunder in the full amounts so to be paid. Whenever any Tax is paid by the Borrower, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary as promptly as possible thereafter, the risk of Borrower shall send the Parent or otherwise operate Bank an official receipt showing payment thereof, together with such additional documentary evidence as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice required from time to time by the ParentBank.
Appears in 1 contract
Sources: Loan and Security Agreement (Kewaunee Scientific Corp /De/)