Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (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), and any other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase 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. Each Guarantor (a) Guaranty of Payment and Performance. The Parent hereby irrevocably and unconditionally guarantees ----------------------------------- to each holder Holder the due full and punctual payment in full of (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), and any other amounts when due under, the Notes when and as the same shall become due and payable (whether at stated maturity or maturity, by required or optional prepayment or pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (b) any other sums collectively, the "Obligations"), including all such Obligations which may would become due under but for the terms and provisions operation of the Notes or the Note Purchase Agreement and automatic stay pursuant to (cS)362(a) the performance of all other obligations of the Company under Federal Bankruptcy Code and the Note Purchase Agreement, operation of (all such obligations described in clauses (a), (bS)(S)502(b) and (c506(b) above are herein called of the “Guaranteed Obligations”)Federal Bankruptcy Code. The This guaranty in the preceding sentence is an absolute, present unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of collectibility their collectability only and is in no way conditional or contingent 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 guarantor entity or other Person primarily or secondarily liable with respect to any of the Notes 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 upon 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 action, occurrence entity or circumstance whatsoever. In the event that the Company shall fail so other Person primarily or secondarily liable with respect to pay any of such Guaranteed Obligations when duethe Obligations; (ii) any extensions, each Guarantor agrees to pay the same when due to the holders entitled theretocompromise, without demandrefinancing, presentment, protest consolidation or notice renewals of any kind, in lawful money of the United States of America, pursuant to the requirements for payment specified Obligation; (iii) any change in the Notes and the Note Purchase Agreement. Each default in time, place or manner of payment of any of the Guaranteed Obligations shall give rise to a separate cause or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of action hereunder and separate suits may be brought hereunder as each cause any of action arises. Each Guarantor agrees that the Notes issued terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Note Purchase Agreement may Obligations made in accordance with the terms hereof; (but need notiv) make reference 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 this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees any extent vary the risk of one special counsel for the holders, taken Parent or otherwise operate as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing release or defending (or determining whether or how to enforce or defend) the provisions discharge of the Note Purchase AgreementParent (other than the indefeasible payment in full, 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 cash, of all of the Notes and Obligations), all of which may be done without notice to the Note Purchase AgreementParent.
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 hereby irrevocably irrevocably, unconditionally and unconditionally jointly and severally with the other Guarantors guarantees to each holder Noteholder, the due and punctual payment in full of (a) the principal of, Make-Whole Amount, Amount (if any), prepayment premium (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 or by required or optional prepayment or by acceleration or otherwise), ) and (b) any other sums which may become due under the terms and provisions of the Notes or Notes, the Note Purchase Agreement and (c) the performance of all or any other obligations of the Company under the Note Purchase Agreement, Finance Document executed in connection therewith (all such obligations described in clauses (a), (b) and (cb) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when dueObligations, each Guarantor agrees to pay the same when due to the holders Noteholders 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 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 all reasonable and documented costs to indemnify and expenses save each Noteholder harmless from and against any damage, loss, cost or expense (including the reasonable fees and documented attorneys’ fees disbursements of one special counsel for the holders, taken any law firm or external counsel) which such Noteholder may incur or be subject to as a wholeconsequence, anddirect or indirect, if reasonably required of (x) any breach by such Guarantor, by any other Guarantor or by the Required HoldersCompany of any warranty, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialtycovenant, for term or condition in, or the holdersoccurrence of any default under, taken this Guaranty Agreement, the Notes, the Note Purchase Agreement or any other Finance Document, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a wholeresult of any such breach or default, (y) incurred by any legal action commenced to challenge the Purchasers validity or enforceability of this Guaranty Agreement, the Notes, the Note Purchase Agreement or any other Finance Document and each other holder of a Note in connection with (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each such Guarantor’s liability hereunder is joint and several with each the other Guarantor Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note 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. Each Guarantor hereby Guarantor, jointly and severally with each other Guarantor, unconditionally and irrevocably and unconditionally guarantees to each holder the due Holders the due, prompt and punctual complete payment in full by the Company of (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)on, and any each other amounts amount due under, the Notes or the Note Purchase Agreement, when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration declaration or otherwise), (b) any other sums which may become due under in accordance with the terms and provisions of the Notes or and the Note Purchase Agreement (the Notes and (c) the performance of all other obligations of Note Purchase Agreement being sometimes hereinafter collectively referred to as the “Note Documents” and the amounts payable by the Company under the Note Purchase AgreementDocuments, (and all such other monetary obligations described in clauses (a)of the Company thereunder, (b) and (c) above are herein called being sometimes collectively hereinafter referred to as the “Guaranteed Obligations”). The guaranty in the preceding sentence This Guaranty is an absolute, present and continuing a guaranty of payment and not just of collectibility and is in no way conditional conditioned or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other actionevent, occurrence contingency or circumstance whatsoever. In the event that If for any reason whatsoever the Company shall fail so or be unable duly, punctually and fully to pay any of such Guaranteed Obligations amounts as and when duethe same shall become due and payable, each Guarantor agrees to pay the same when due to the holders entitled theretoGuarantor, without demand, presentment, protest or notice of any kind, will forthwith pay or cause to be paid such amounts to the Holders under the terms of such Note Documents, in lawful money of the United States of AmericaStates, pursuant to at the requirements for payment place specified in the 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, or perform or comply with the Notes same or cause the same to be 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. Each Guarantor, promptly after demand, will pay to the Holders the reasonable costs and expenses of collecting such amounts or otherwise enforcing this Guaranty, including, without limitation, the reasonable fees and expenses of counsel. Notwithstanding the foregoing, the right of recovery against each Guarantor under this Guaranty Agreement. Each is limited to the extent it is judicially determined with respect to any Guarantor hereby acknowledges and agrees that each entering into this Guaranty would violate Section 548 of the United States Bankruptcy Code or any comparable provisions of any state law, in which case such Guarantor shall be liable under this Guaranty only for amounts aggregating up to the largest amount that would not render such Guarantor’s liability obligations hereunder is joint and several with each other Guarantor and any other Person(s) who may guarantee the obligations and Indebtedness subject to avoidance under and in respect Section 548 of the Notes and the Note Purchase AgreementUnited States Bankruptcy Code or any comparable provisions of any state law.
Appears in 3 contracts
Sources: Note Purchase Agreement (Helmerich & Payne Inc), Note Purchase Agreement (Lincare Holdings Inc), Note Purchase Agreement (Elkcorp)
Guaranty. (a) Each Guarantor Borrower hereby irrevocably unconditionally and unconditionally irrevocably, jointly and severally guarantees to Administrative Agent, Lenders, and each other holder of the Obligations, as primary obligor and not as surety:
(i) the due and punctual payment in full (and not merely the collectibility) by each Borrower of (a) the principal ofObligations, Make-Whole Amountincluding unpaid and accrued interest thereon, 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 each case when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise)payable, (b) any other sums which may become due under all according to the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and the other Loan Documents;
(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 any time be due and payable in accordance with this Guaranty Agreement, the Notes or any of the other Loan Documents;
(iii) the due and punctual performance by each Borrower of all of the other terms, covenants and conditions contained in the Loan Documents; and
(iv) all the other Obligations of each Borrower. Notwithstanding any provision to the contrary contained herein or in any other of the Loan Documents or the other documents relating to 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 other Loan Documents shall not exceed an aggregate amount equal to the largest amount that would not render such obligations subject to avoidance under applicable Debtor Relief Laws.
(b) The obligations and liabilities of each Borrower as a guarantor under this Section shall be absolute and unconditional and joint and several, irrespective of the genuineness, validity, priority, regularity or enforceability of this Agreement, any of the Notes or any of the Loan Documents or any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Guarantor hereby acknowledges Borrower solely in its capacity as a guarantor (and not in its capacity as a Borrower hereunder) expressly agrees that each Guarantor’s liability hereunder is 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 with each other Guarantor obligations and liabilities of such Borrower as a guarantor hereunder:
(i) waive compliance with, or any defaults under, or grant any other Person(sindulgences under or with respect to any of the Loan Documents;
(ii) who 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 respects 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 guarantee 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, Administrative Agent and Lenders shall not be required to make any demand upon any of Borrower, or to 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 the same action, if any, brought against any one or more of Borrower or in separate actions or proceedings, as often as Administrative Agent may deem expedient or advisable. Without limiting the foregoing, it is specifically understood that any modification, limitation or discharge of any of the liabilities or obligations of any one or more of Borrower, any other guarantor or any obligor under any of the Loan Documents, arising out of, or by virtue of, any bankruptcy, 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 guarantor by reason of any such proceeding, and each Borrower agrees that it shall be liable for the full amount of the obligations and Indebtedness liabilities under this Section, regardless of, and in respect irrespective to, any modification, limitation or 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 Note Purchase Agreementamount 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 Section, the Notes or any of the other 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 assets of any one or more of the other Borrower;
(viii) any act or omission of Administrative Agent or Lenders which 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 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 not any credits, offsets or defenses exist with respect to this Section.
Appears in 2 contracts
Sources: Credit Agreement (Micros Systems Inc), Credit Agreement (Micros Systems Inc)
Guaranty. Each Guarantor hereby unconditionally and irrevocably and unconditionally guarantees to the Administrative Agent, each holder 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 due Guaranteed Obligations (collectively, the “Guarantee Beneficiaries”) the full and prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of the Guaranteed Obligations and the punctual performance of all of the terms contained in the Loan Documents. This Guaranty is a guaranty of payment and performance and is not merely a guaranty of collection. As used herein, the term “Guaranteed Obligations” means any and all existing and future Obligations which may be payable by the Borrowers to the Guarantee Beneficiaries under the Credit Agreement and any other Loan Document (and, in full each case, including all renewals, extensions, amendments, refinancings and other modifications thereof and all costs, attorneys’ fees and expenses incurred by any Guarantee Beneficiary in connection with the collection or enforcement thereof (in each case, to the extent required to be paid under the Credit Agreement)). Without limiting the generality of the foregoing, the 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 similar federal or state law. Without limiting the generality of the foregoing unconditional guarantee, for the avoidance of doubt, this Guaranty shall in no manner be released, discharged or otherwise affected or limited by (a) the principal any waiver, modification or amendment of, Make-Whole Amountor supplement to, if anyany documentation governing the Guarantee Obligations, including the Credit Agreement 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 or by required or optional prepayment or by acceleration or otherwise)Loan Documents, (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty change in the preceding sentence is an absolutecorporate existence, present and continuing guaranty structure or ownership of payment and not of collectibility and is in no way conditional or contingent upon (x) any attempt to collect from the Company Borrower, any Guarantor or any other guarantor of the Notes Guaranteed Obligations or upon (y) any Guarantee Beneficiary, (c) the existence of any claim, set-off or other rights which any Guarantor may have at any time against any Borrower, any Guarantee Beneficiary or any other actionentity, occurrence or circumstance whatsoever. 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 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 whether in connection with the Note Purchase Agreement may Loan Documents or with unrelated transactions; provided, that this clause (but need notc) make reference shall not prevent the assertion of such claim by separate suit or in a compulsory counterclaim, (d) any invalidity or unenforceability relating to this Guaranty Agreement. Each Guarantor agrees or against any Borrower for any reason relating to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing Loan Documents or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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(sprovision of applicable law or regulation purporting to prohibit the payment by any Borrower, any Guarantor or any other guarantor of any Guaranteed Obligations or (e) who may guarantee the obligations and Indebtedness under and in respect any other act or omission to act or delay of the Notes and the Note Purchase Agreementany kind by any Borrower, any Guarantee Beneficiary or any other person.
Appears in 2 contracts
Sources: Credit Agreement (Celanese Corp), Credit Agreement (Celanese Corp)
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) Each Guarantor jointly and severally hereby unconditionally and irrevocably (i) guarantees the principal of, Make-Whole Amount, if anyfull and prompt payment and performance when due of all now existing and hereafter arising Obligations, and interest on (includingii) 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 limitationduplication of work performed by outside counsel)) reasonably incurred by Lender Parties in enforcing the Guaranty set forth in this Article XIV (collectively, 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 or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence This Guaranty is an absolute, present and a continuing guaranty of payment and performance when due and not of collectibility collection which shall not be discharged until all Guaranteed Obligations are indefeasibly paid in cash and performed in full and this Agreement is terminated.
(b) Each Guarantor jointly and severally hereby unconditionally and irrevocably (i) guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any Applicable Law now or hereafter in effect in any jurisdiction affecting any such terms or the rights of 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 way conditional obligation to marshal any assets in favor of any Guarantor or contingent upon to proceed against or exhaust any attempt 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 collect from all amounts that constitute part of the Company 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 other guarantor of the Notes Guaranteed Obligations, or upon any other actionrescission, occurrence amendment or circumstance whatsoever. In the event that the Company shall fail so to pay modification to, or waiver or compromise or acceleration of or any of such Guaranteed Obligations when dueconsent with respect to, 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 payment of any of the Guaranteed Obligations shall give rise or any Loan Document or any other guaranty or the failure to obtain the consent or any Guarantor or other Person with respect thereto;
(iii) the existence, value or condition of, or the failure by any Lender Party to perfect and maintain any Lien in, or to preserve any rights to, or the release or foreclosure of, any Collateral or other security for the Obligations;
(iv) the change, restructuring, dissolution or termination of the structure or existence of any Credit Party or the insolvency or bankruptcy of any Credit Party under any Debtor Relief Law;
(v) any action taken or omitted by any Lender Party or any failure of any Lender Party to assert any claim or demand or to enforce any right or remedy against any Credit Party or any other 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 separate cause defense available to, or a legal or equitable discharge of, any co-obligor, Credit Party or any other guarantor or surety (other than actual indefeasible payment of action hereunder and separate suits may be brought hereunder as each cause of action arises. the Obligations in full in cash).
(c) 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each Guarantor’s liability hereunder is (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 each other the Guaranty provided in this Article XIV, and (ii) Lender Parties have made no representation or warranty with respect to validity, genuineness, regularity, or enforceability of any of the Loan Documents, and have no duty or responsibility whatsoever to any Guarantor and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect to the management and maintenance of the Notes and the Note Purchase AgreementGuaranteed Obligations or any Collateral.
Appears in 2 contracts
Sources: Credit Agreement (Fibernet Telecom Group Inc\), Credit Agreement (Fibernet Telecom Group Inc\)
Guaranty. Each The Guarantor hereby unconditionally and irrevocably and unconditionally guarantees to the Administrative Agent, each holder 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 due and punctual payment in full of Guaranteed Obligations (acollectively, the “Guarantee Beneficiaries”) the principal offull and prompt payment when due, 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 or maturity, by required or optional prepayment or by acceleration prepayment, upon acceleration, demand or otherwise), (b) any other sums which may become due under the terms and provisions at all times thereafter, of the Notes or Guaranteed Obligations and the Note Purchase Agreement and (c) the punctual performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty terms contained in the preceding sentence Loan Documents. This Guaranty is an absolute, present and continuing a guaranty of payment and not of collectibility performance and is not merely a guaranty of collection. As used herein, the term “Guaranteed Obligations” means any and all existing and future Obligations which may be payable by the Borrowers to the Guarantee Beneficiaries under the Credit Agreement and any other Loan Document (and, in no way conditional each case, including all renewals, extensions, amendments, refinancings and other modifications thereof and all costs, attorneys’ fees and expenses incurred by any Guarantee Beneficiary in connection with the collection or contingent upon enforcement thereof (in each case, to the extent required to be paid under the Credit Agreement)). Without limiting the generality of the foregoing, the Guaranteed Obligations shall include any attempt to collect from 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 Company Guarantor, any Borrower or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when dueunder any Debtor Relief Law, each Guarantor agrees to pay and shall include interest that accrues after the same when due to the holders entitled thereto, without demand, presentment, protest commencement by or notice against any Borrower of any kind, in lawful money proceeding under any Debtor Relief Laws. Without limiting the generality of the United States foregoing unconditional guarantee, for the avoidance of Americadoubt, pursuant to this Guaranty shall in no manner be released, discharged or otherwise affected or limited by (a) any waiver, modification or amendment of, or supplement to, any documentation governing the requirements for payment specified Guarantee Obligations, including the Credit Agreement and the other Loan Documents, (b) any change in the Notes and the Note Purchase Agreement. Each default in payment corporate existence, structure or ownership of (x) any Borrower or any guarantor of the Guaranteed Obligations shall give rise to a separate cause or (y) any Guarantee Beneficiary, (c) the existence of action hereunder and separate suits any claim, set-off or other rights which the Guarantor may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued have at any time against any Borrower, any Guarantee Beneficiary or any other entity, whether in connection with the Note Purchase Agreement may Loan Documents or with unrelated transactions; provided, that this clause (but need notc) make reference shall not prevent the assertion of such claim by separate suit or in a compulsory counterclaim, (d) any invalidity or unenforceability relating to this Guaranty Agreement. Each Guarantor agrees or against any Borrower for any reason relating to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing Loan Documents or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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(sprovision of applicable law or regulation purporting to prohibit the payment by any Borrower or any other guarantor of any Guaranteed Obligations or (e) who may guarantee the obligations and Indebtedness under and in respect any other act or omission to act or delay of the Notes and the Note Purchase Agreementany kind by any Borrower, any Guarantee Beneficiary or any other person.
Appears in 2 contracts
Sources: Credit Agreement (Celanese Corp), Credit Agreement (Celanese Corp)
Guaranty. Each Guarantor The Guarantor, jointly and severally, hereby unconditionally and irrevocably guaranties to the Lender the full payment and unconditionally guarantees to each holder the due and punctual payment in full of (a) the principal ofperformance, Make-Whole Amountwhen due, 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 or by required or optional prepayment or by acceleration or otherwise), of all indebtedness, liabilities, and obligations of Borrower to the Lender of any kind and description (bcollectively, the “Indebtedness”) under and pursuant to the Note or any other sums which may become due under the terms and provisions of the Notes other documents evidencing or securing the Note Purchase Agreement and Loan (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called collectively the “Guaranteed ObligationsLoan Documents”). The guaranty of the Guarantor as set forth in the preceding sentence this section is an absolute, present continuing, primary, and continuing unconditional guaranty of payment and not of collectibility collection. If a claim is ever made upon the Lender for the repayment or recovery of any amount or amounts received by the Lender in payment of any of the Indebtedness and is in no way conditional the Lender repays all or contingent upon part of such amount by reason of (a) any attempt to collect from judgment, decree, or order of any court or administrative body having jurisdiction over the Company Lender or any other guarantor of its property, or (b) any settlement or compromise of any such claim effected by the Lender with any such claimant, including the Borrower, then in such event the Guarantor agrees that any such judgment, decree, order, settlement, or compromise shall be binding upon the Guarantor, notwithstanding any revocation hereof or the cancellation of the Notes Note or upon other instrument evidencing any of the Indebtedness, and the Guarantor shall be and remain obligated to the Lender hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by the Lender, such amount to be included in the term “Indebtedness.” This Guaranty may be enforced by the Lender against the Guarantor without the necessity at any time of the Lender’s (a) having recourse against Borrower on the Note, or (b) exercising any other action, occurrence rights available to it under the Note or circumstance whatsoeverother Loan Documents. In the event that the Company The Guarantor on demand 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 kindLender in immediately available funds, in lawful money of the United States of America, pursuant any sum or sums due to the requirements for payment specified in the 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase AgreementLender hereunder.
Appears in 2 contracts
Sources: Loan Agreement (Roberts Realty Investors Inc), Guaranty (Roberts Realty Investors Inc)
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) The Guarantor hereby absolutely, unconditionally and irrevocably guarantees the principal offull and prompt payment when due, 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 or by required or optional prepayment or maturity, by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement at all times thereafter, all principal, interest, fees and (c) the performance of all other monetary obligations of the Company under Trust owed to each of the Note Purchase AgreementSubordinate 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 (all such obligations described in clauses (a), (b) and (c) above are being herein collectively called the “Guaranteed Obligations”). The This Guaranty constitutes a guaranty in by the preceding sentence is an absolute, present and continuing guaranty Guarantor of payment when due and not of collectibility collection, and is in no way conditional the Guarantor specifically agrees that it shall not be necessary or contingent upon required that the Trustee or any attempt to collect from the Company Subordinate Certificate Holder or any other guarantor 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 the obligations of the Notes or upon any other action, occurrence or circumstance whatsoeverGuarantor hereunder. In the event that the Company shall fail so to pay any of such the Guaranteed Obligations shall not be paid when duedue within any period provided for in the Certificados Subordinados, each the Guarantor agrees to pay the same when due such Guaranteed Obligations to the holders entitled thereto, without demand, presentment, protest or notice corresponding Subordinate Certificate Holder within 30 (thirty) calendar days after delivery of a written demand by any kind, in lawful money such Subordinate Certificate Holder to the Guarantor. Without limiting the generality of the United States of Americaforegoing, pursuant to upon any default on the requirements for payment specified in the Notes and the Note Purchase Agreement. Each default in payment of any of the Guaranteed Obligations shall give rise Obligations, the Subordinate Certificate Holders may demand payment directly to a separate cause the Guarantor, either prior to or concurrently with any requirement or lawsuit against, or without bringing requirement or suit against, the Trust.
(b) Any term or provision of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued this Guaranty or any other transaction document executed in connection with the Note Purchase Trust Agreement may (but need not) make reference to the contrary notwithstanding, the aggregate maximum amount of the Guaranteed Obligations for which the Guarantor shall be liable shall not exceed the maximum amount for which the Guarantor can be liable without rendering this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each or any other holder of a Note transaction document executed in connection with enforcing the Trust Agreement as it relates to the Guarantor, voidable under applicable law relating to fraudulent conveyance or defending fraudulent transfer.
(c) Any term or determining whether provision of this Guaranty or how the Trust Agreement or any other transaction document executed in connection therewith to enforce or defend) the provisions contrary notwithstanding, the aggregate maximum amount of the Note Purchase AgreementGuaranteed Obligations for which the Guarantor shall be liable with respect to the principal amount of the Certifcados Subordinados shall not exceed (x) USD$19,000,000 (nineteen million Dollars) minus (y) any 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 such higher amount as the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees shall have agreed to in writing, provided, that each the foregoing shall only limit Guarantor’s liability hereunder is joint and several obligations for principal of the Certifcados Subordinados but shall not limit or impair the Guarantor’s obligation with each other Guarantor and respect to any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note Purchase AgreementGuaranteed Obligation.
Appears in 2 contracts
Sources: Guaranty (Vitro Sa De Cv), Guaranty (Vitro Sa De Cv)
Guaranty. Each Subsidiary Guarantor hereby irrevocably irrevocably, unconditionally and unconditionally jointly and severally with the other Subsidiary Guarantors guarantees to each holder holder, the due and punctual payment in full of (a) 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 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 or by required or optional prepayment or by acceleration or otherwise), ) and (b) any other sums which may become due under the terms and provisions of the Notes or Notes, the Note Purchase Agreement and (c) the performance of all or any other obligations of the Company under the Note Purchase Agreement, instrument referred to therein (all such obligations described in clauses (a), (b) and (cb) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company 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 such Guaranteed Obligations when dueObligations, each Subsidiary 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 Americacurrency in which such Guaranteed Obligations are payable under the Note Agreement, pursuant to the requirements for payment specified in the 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 Subsidiary Guarantor agrees that the Notes issued in connection with the Note Purchase Agreement may (but need not) make reference to this Subsidiary Guaranty Agreement. Each Subsidiary Guarantor agrees to pay all reasonable and documented costs to indemnify and expenses save each holder harmless from and against any damage, loss, cost or expense (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken fees) which such holder may incur or be subject to as a wholeconsequence, anddirect or indirect, if reasonably required of (x) any breach by such Subsidiary Guarantor, by any other Subsidiary Guarantor or by the Required HoldersObligors of any warranty, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialtycovenant, for term or condition in, or the holdersoccurrence of any default under, taken this Subsidiary Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a wholeresult of any such breach or default, (y) incurred by any legal action commenced to challenge the Purchasers validity or enforceability of this Subsidiary Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and each other holder of a Note in connection with (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Subsidiary Guaranty Agreement. Each Subsidiary Guarantor hereby acknowledges and agrees that each such Subsidiary Guarantor’s liability hereunder is joint and several with each the other Guarantor Subsidiary Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note Purchase Agreement.
Appears in 2 contracts
Sources: Subsidiary Guaranty Agreement, Subsidiary Guaranty Agreement (Littelfuse Inc /De)
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) The Guarantors, jointly and severally, hereby unconditionally and irrevocably, guaranty to the principal ofCollateral Agent, Make-Whole Amountfor the benefit of the Noteholders, if anythe punctual payment, as and interest on (when due and payable, by stated maturity or otherwise, of all Obligations of the 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, interest accruing all interest, make-whole and other amounts that accrues after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization Insolvency Proceeding of the Company or like proceedingany Guarantor, whether or not a claim for postthe payment of such interest, make-filing whole and/or other amounts are enforceable or post-petition interest is allowed are allowable in such proceeding)Insolvency Proceeding, and any all fees, interest, premiums, penalties, contract causes of actions, costs, commissions, expense reimbursements, indemnifications and all other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may to become due under the terms and provisions any of the Notes or the Note Purchase Agreement and Transaction Documents (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called foregoing collectively being the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so agrees 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 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 all reasonable and documented costs and expenses (including reasonable counsel fees and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if expenses) reasonably required by the Required 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 by the Purchasers and each other holder of a Note Collateral Agent in connection with enforcing or defending (or determining whether or how to enforce or defend) any rights under this Guaranty. Without limiting the provisions generality of the Note Purchase Agreementforegoing, 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 shall extend to all amounts that constitute part of the Notes Guaranteed Obligations and would be owed by the Company to the Collateral Agent or any Noteholder under the Securities Purchase Agreement and the Note Purchase AgreementNotes but for the fact that they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any Transaction Party.
(b) Each Guarantor, 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 conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal, provincial or state law to the extent applicable to this Guaranty and 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 Guaranteed Obligations of each Guarantor under this Guaranty at any time shall be limited to the maximum amount as will result in the Guaranteed Obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance.
Appears in 2 contracts
Sources: Guaranty (Ascent Solar Technologies, Inc.), Guaranty (Ascent Solar Technologies, Inc.)
Guaranty. (a) Each Guarantor jointly and severally hereby fully, unconditionally and irrevocably guarantees, as primary obligor and unconditionally guarantees not merely as surety, to each holder Holder the due full and punctual payment in full when due, whether at maturity, by acceleration, by redemption or otherwise, of (a) the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, including any interest accruing after the filing commencement of any petition proceeding in bankruptcy, or bankruptcy and any additional interest that would accrue but for 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) on the Notes and all other obligations of the Issuer under the Note Purchase Agreement (all the foregoing being hereinafter collectively called the “Obligations”). Each Guarantor further agrees (to the extent permitted by applicable law) that the Obligations may be extended or renewed, in whole or in part, without notice or 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 any of the other Guarantors, exceeds the amount which such Guarantor would otherwise have paid if each Guarantor had paid the aggregate obligations satisfied by such Payment in the same proportion as such Guarantor’s “Allocable Amount” (as hereinafter defined) in effect immediately prior to such Payment bore to the Aggregate Allocable Amount (as hereinafter defined) of all of the 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 amounts due underGuarantor, 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 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 equal to the maximum 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 and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 arisesaccordance herewith. Each Guarantor agrees acknowledges that the Notes issued rights of contribution and indemnification hereunder shall constitute an asset in connection with the Note Purchase Agreement may (but need not) make reference favor of any Guarantor to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable which such contribution and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each Guarantor’s liability hereunder indemnification 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 Agreementowing.
Appears in 2 contracts
Sources: Note Purchase Agreement (Brandywine Operating Partnership Lp /Pa), Note Purchase Agreement (Brandywine Realty Trust)
Guaranty. Each Guarantor hereby irrevocably irrevocably, unconditionally and unconditionally jointly and severally with the other Guarantors guarantees to each holder holder, the due and punctual payment in full of (a) the principal of, Make-Whole Yield Maintenance 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 or by required or optional prepayment or by acceleration or otherwise), ) and (b) any other sums which may become due under the terms and provisions of the Notes Notes, the Shelf Agreement or the Note Purchase Agreement and (c) the performance of all any other obligations of the Company under the Note Purchase Agreementinstrument referred to therein, (all such obligations described in clauses (a), (b) and (cb) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility collectability and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when dueObligations, 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 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 Note Purchase Shelf Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs to indemnify and expenses save each holder harmless from and against any damage, loss, cost or expense (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken fees) which such holder may incur or be subject to as a wholeconsequence, anddirect or indirect, if reasonably required of (x) any breach by such Guarantor, by any other Guarantor or by the Required HoldersCompany of any warranty, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialtycovenant, for term or condition in, or the holdersoccurrence of any default under, taken this Guaranty Agreement, the Notes, the Shelf Agreement or any other instrument referred to therein, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a wholeresult of any such breach or default, (y) incurred by any legal action commenced to challenge the Purchasers validity or enforceability of this Guaranty Agreement, the Notes, the Shelf Agreement or any other instrument referred to therein and each other holder of a Note in connection with (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each such Guarantor’s liability hereunder is joint and several with each the other Guarantor Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note Purchase Shelf Agreement.
Appears in 2 contracts
Sources: Note Purchase Agreement (Franklin Electric Co Inc), Note Purchase and Private Shelf Agreement (Franklin Electric Co Inc)
Guaranty. (a) Each Guarantor Borrower hereby irrevocably unconditionally and unconditionally irrevocably, guarantees to each holder the Lender:
(i) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of (a) the principal ofObligations, Make-Whole Amountincluding unpaid and accrued interest thereon, 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 each case when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise)payable, (b) any other sums which may become due under all according to the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and the other Financing Documents;
(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 any time be due and payable in accordance with this Guaranty Agreement, the Notes or any of the other Financing Documents;
(iii) the due and punctual performance by the other Borrowers of all of the other terms, covenants and conditions contained in the Financing Documents; and
(iv) all the other Obligations of the other Borrowers.
(b) The obligations and liabilities of each Borrower as a guarantor under this Section 2.5.5 shall be absolute and unconditional and joint and several, irrespective of the genuineness, validity, priority, regularity or enforceability of this Agreement, any of the Notes or any of the Financing Documents or any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Guarantor hereby acknowledges and Borrower in its capacity as a guarantor expressly agrees that each Guarantor’s liability hereunder is 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 with each other Guarantor obligations and liabilities of such Borrower as a guarantor hereunder:
(i) waive compliance with, or any defaults under, or grant any other Person(sindulgences under or with respect to any of the Financing Documents;
(ii) who 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 respects 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 guarantee 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 Lender shall not be required to make any demand upon any of the Borrowers, or to sell the Collateral or otherwise pursue, enforce or exhaust its remedies against the 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 2.5.5, either in the same action, if any, brought against any one or more of 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 liabilities or obligations of any one or more of the Borrowers, any other guarantor or any obligor under any of the Financing Documents, arising out of, or by virtue of, any bankruptcy, 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 guarantor by reason of any such proceeding, and the Borrowers agree that they shall be liable for the full amount of the obligations and Indebtedness liabilities under this Section 2.5.5, regardless of, and in respect irrespective to, any modification, limitation or 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 Note Purchase Agreementamount 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 Section 2.5.5, the Notes or any of the other 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 assets of any one or more of the other Borrowers;
(viii) any act or omission of the Lender which 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 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 not any credits, offsets or defenses exist with respect to this Section 2.5.5.
Appears in 2 contracts
Sources: Financing and Security Agreement (Tvi Corp), Financing and Security Agreement (Tvi Corp)
Guaranty. Each Loan Guarantor and any of its successors or assigns (other than those that have delivered a separate Loan Guaranty) hereby irrevocably agrees that it is jointly and severally liable for, and, as primary obligor and not merely as surety, absolutely and unconditionally guarantees guarantees, to each holder the due extent permissible under the laws of the country in which such Loan Guarantor is located or organized, to the Lenders and punctual payment in full of the Agents (acollectively, the “Guaranteed Parties”) the principal ofprompt payment when due, Make-Whole Amountwhether at stated maturity, if anyupon acceleration or otherwise, and interest on (at all times thereafter, of the Secured Obligations and all costs and expenses including, without limitation, interest accruing after all court costs and attorneys’ and paralegals’ fees (including allocated costs of in-house counsel and paralegals) and expenses paid or incurred by the filing Agents and the Lenders in endeavoring to collect all or any part of any petition in bankruptcythe Secured Obligations from, or in prosecuting any action against, the commencement of any insolvencyBorrower, 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 Loan Guarantor or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions guarantor of all or any part of the Notes or Secured Obligations (such costs and expenses, together with the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase AgreementSecured Obligations, (all such obligations described in clauses (a), (b) and (c) above are herein called collectively the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event Each Loan Guarantor further agrees that the Company shall fail so to pay any of such Guaranteed Obligations when duemay be extended or renewed in whole or in part without notice to or further assent from it, each Guarantor agrees and that it remains bound upon its guarantee notwithstanding any such extension or renewal. All terms of this Loan Guaranty apply to pay the same when due to the holders entitled thereto, without demand, presentment, protest and may be enforced by or notice on behalf 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 payment domestic or foreign branch or Affiliate of any Lender that extended any portion of the Guaranteed Obligations shall give rise to Obligations. If any payment by a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Loan Guarantor agrees that the Notes issued in connection with the Note Purchase Agreement may or any discharge given by a Guaranteed Party (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes obligations of any Loan Guarantor or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event: (a) the liability of each Loan Guarantor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and (b) each Guaranteed Party shall be entitled to recover the Note Purchase Agreementvalue or amount of that security or payment from each Loan Guarantor, as if the payment, discharge, avoidance or reduction had not occurred. The obligations of each Loan Guarantor under this Article X will not be affected by an act, omission, matter or thing which, but for this Article X, would reduce, release or prejudice any of its obligations under this Article X (without limitation and whether or not known to it or any Guaranteed Party) including: (a) any time, waiver or consent granted to, or composition with, any Loan Guarantor or other person; (b) the release of any other Loan Guarantor; (c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Loan Guarantor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to realize the full value of any security; (d) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of a Loan Guarantor or any other person; (e) any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case, however fundamental and of whatsoever nature) or replacement of a Loan Document or any other document or security; (f) any unenforceability, illegality or invalidity of any obligation of any person under any Loan Document or any other document or security; or (g) any insolvency, bankruptcy, winding-up, liquidation, reorganization or other similar proceedings. Without prejudice to the generality of the above, each Loan Guarantor expressly confirms, as permissible under applicable law, that it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Loan Documents and/or any amount made available under any of the Loan Documents for the purposes of or in connection with any of the following: acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new Borrower; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing. Each Loan Guarantor waives any right it may have of first requiring any Guaranteed Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Loan Guarantor under this Article X. This waiver applies irrespective of any law or any provision of a Loan Document to the contrary. This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Guaranteed Party. This guarantee does not apply to any liability to the extent that it would result in this guarantee constituting unlawful financial assistance within the meaning of any equivalent and applicable provisions under the laws of the jurisdiction of incorporation of the relevant Loan Guarantor.
Appears in 2 contracts
Sources: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)
Guaranty. (a) Each Guarantor Borrower hereby irrevocably unconditionally and unconditionally irrevocably, guarantees to each holder the Lender:
(i) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of (a) the principal ofObligations, Make-Whole Amountincluding unpaid and accrued interest thereon, 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 each case when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise)payable, (b) any other sums which may become due under all according to the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and the other Financing Documents;
(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 any time be due and payable in accordance with this Guaranty Agreement, the Notes or any of the other Financing Documents;
(iii) the due and punctual performance by the other Borrowers of all of the other terms, covenants and conditions contained in the Financing Documents; and
(iv) all the other Obligations of the other Borrowers.
(b) The obligations and liabilities of each Borrower as a guarantor under this Section 2.3.8 shall be absolute and unconditional and joint and several, irrespective of the genuineness, validity, priority, regularity or enforceability of this Agreement, any of the Notes or any of the Financing Documents or any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Guarantor hereby acknowledges and Borrower in its capacity as a guarantor expressly agrees that each Guarantor’s liability hereunder is 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 with each other Guarantor obligations and liabilities of such Borrower as a guarantor hereunder:
(i) waive compliance with, or any defaults under, or grant any other Person(sindulgences under or with respect to any of the Financing Documents;
(ii) who 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 respects 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 guarantee 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 Lender shall not be required to make any demand upon any of the Borrowers, or to sell the Collateral or otherwise pursue, enforce or exhaust its remedies against the 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 2.3.8, either in the same action, if any, brought against any one or more of 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 liabilities or obligations of any one or more of the Borrowers, any other guarantor or any obligor under any of the Financing Documents, arising out of, or by virtue of, any bankruptcy, 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 guarantor by reason of any such proceeding, and the Borrowers agree that they shall be liable for the full amount of the obligations and Indebtedness liabilities under this Section 2.3.8, regardless of, and in respect irrespective to, any modification, limitation or 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 Note Purchase Agreementamount 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 Section 2.3.8, the Notes or any of the other 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 assets of any one or more of the other Borrowers;
(viii) any act or omission of the Lender which 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 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 not any credits, offsets or defenses exist with respect to this Section 2.3.8.
Appears in 2 contracts
Sources: Financing Agreement (Argan Inc), Financing and Security Agreement (Argan Inc)
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) The Guarantor unconditionally and irrevocably guarantees (the principal of“Guaranty”) in favour of the Sellers (the “Guaranteed Parties”) the full and punctual performance by the Buyers of each and every covenant and agreement of each of the Buyers pursuant to this Agreement and pursuant to any of the Transaction Documents to which such Buyer is a party, Make-Whole Amount, if any, including the payment of the Purchase Price and interest on other amounts under Article II and any payments for indemnification under Article IX (including, without limitation, interest accruing after the filing “Guaranteed Obligations”). Upon the failure of any petition in bankruptcy, or the commencement of Buyer to pay 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 by it under Article II or Article IX when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when due, each Guarantor agrees hereby promises to pay the same when due pay, and shall upon receipt of written demand by Sellers forthwith pay, to the holders entitled thereto, without demand, presentment, protest or notice of any kind, Sellers such amounts in lawful money of the United States of America, pursuant States. Sellers shall only deliver such written demand to the requirements for payment specified in the Notes Guarantor, and the Note Purchase Agreement. Each default in payment of any such written demand shall only be effective, upon failure or refusal by any Buyer punctually to pay or perform any of the Guaranteed Obligations shall give rise in accordance with the terms of this Agreement. The Guaranty is a guarantee of payment when due and not of collection.
(b) To the fullest extent permitted by Law, the Guarantor hereby expressly waives any and all rights or defenses arising by reason of any law which would otherwise require any election of remedies by the Guaranteed Parties. The Guarantor waives promptness, diligence, notice of acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of the incurrence of any Guaranteed Obligations and all other notices of any kind (except for notices to a separate cause of action hereunder be provided to the Buyers and separate suits the Guarantor in accordance with Section 10.1), all defenses which may be brought hereunder as each cause available by virtue of action arisesany stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Buyers or any other person interested in the transactions contemplated by this Agreement and the Transaction Documents. Each The Guarantor agrees acknowledges that it will receive substantial direct and indirect benefits from consummation of the transactions contemplated by this Agreement and the Transaction Documents and that the Notes issued waivers set forth in connection with this Section 5.16 are knowingly made in contemplation of such benefits. The obligations of the Note Purchase Agreement may Guarantor shall not be subject to any reduction, limitation, impairment or termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any setoff, counterclaim, recoupment or termination whatsoever by reason of the invalidity, illegality or unenforceability of the Guaranteed Obligations or otherwise (but need notother than defense of payment or performance).
(c) make reference to Nothing contained in this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel including, for the holdersgreater certainty, taken in Section 5.16(b) above) shall constitute or be construed as a whole, and, if reasonably required waiver or release by the Required HoldersGuarantor of, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialty, for and the holders, taken as a whole) incurred by Guarantor shall be entitled to the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreementfull benefit of, the Notes defenses, rights and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees remedies that each Guarantor’s liability hereunder is joint and several with each other Guarantor and would have been available to any other Person(s) who may guarantee the obligations and Indebtedness under and Buyer in respect of the Notes Guaranteed Obligations as if any demand hereunder had been made by the Sellers upon such Buyer directly and without reference to this Guaranty, including all equities that exist between each Buyer and the Note Purchase AgreementSellers in respect of the Guaranteed Obligations. Additionally, any demand made by the Sellers upon the Guarantor hereunder shall be subject to all limitations and exclusions of liability under the terms of this Agreement then available to any of the Buyers in respect of the Guaranteed Obligations.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Harman International Industries Inc /De/)
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) Each Partner (together with any Person who may hereafter agree to become a guarantor under this Agreement by signing a written instrument expressly agreeing to be so bound, each a "GUARANTOR," and collectively, the principal of"GUARANTORS") hereby unconditionally and irrevocably guarantees severally (and not jointly) the full payment in cash, Make-Whole Amountwhen due, if anyof such Guarantor's Pro Rata Share of the Clawback Obligation, and interest on if for any reason the Partnership (includingthe "OBLIGOR") shall fail fully and punctually to pay the Clawback Obligation, without limitation, interest accruing after each of the filing 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 petition in bankruptcy, amounts applied from such Guarantor's Segregated Account and (ii) the amount payable by each Guarantor shall not exceed the aggregate Carried Interest distributions received by such Guarantor directly or indirectly from the commencement of any insolvency, reorganization Partnership (or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed held in such proceeding), and any other amounts due under, Guarantor's Segregated Account) less the Notes when and as deemed income tax liability (calculated based on the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (bTax Percentage) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase on income allocated with respect to such Carried Interest distributions. This Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and unconditional, continuing guaranty guarantee of payment and not of collectibility collection, and is in no way conditional conditioned or contingent upon any attempt to collect from the Company 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 Funds and the limited partners of the Funds (the "FUND LIMITED PARTNERS") and shall not be impaired, discharged or 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 other party. Paragraph (a) above may not be amended in a manner adverse to the Fund Limited Partners without the consent of the "Required Limited Partners" of the Funds (as defined in the Fund Partnership Agreements).
(b) Promptly following the determination that a contribution is required to be made by the Obligor 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.
(c) To the fullest extent permitted by law, the Guarantor irrevocably waives acceptance hereof, presentment, demand, protest, benefit of order, notice of dishonor and any notice not provided for herein, as well as any requirement that at any time any action be taken by any Person against the Obligor or any other guarantor 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 Notes Clawback Obligation), irrespective of the validity or upon enforceability of the Clawback Obligation, and shall not be affected by any action taken under the Clawback Obligation in the exercise of any right or remedy therein conferred, or by any failure or omission on the part of the Funds or the Fund Limited Partners to enforce any right given thereunder or hereunder or any remedy therein conferred, or by any failure or omission on the part of the Funds or the Fund Limited Partners to enforce any right given thereunder or hereunder or any remedy conferred thereby or hereby, or by any waiver of any term, covenant, agreement or condition of the Clawback Obligation or this Agreement, or by any other actioncircumstance which may or might be in any manner or to any extent vary the risk of any Guarantor hereunder.
(e) Except for the addition of Guarantors set forth in the following sentence and subject to the second sentence of Section 13.02(b), occurrence or circumstance whatsoeverthis Article 13 may not be amended except with the written consent of the Required Partners and the unanimous consent of the Guarantors. In The Obligor hereby agrees that it will not admit any Person as a Partner and the event General Partner hereby agrees that the Company it will not permit any Person to become entitled to any share of its distributions unless such Person shall fail so have first executed a supplement hereto pursuant to pay any of which such Guaranteed Obligations when due, each Guarantor Person 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 payment of any of the Guaranteed Obligations shall give rise to become a separate cause of action Guarantor hereunder and separate suits may to 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required bound by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase AgreementArticle 13.
Appears in 2 contracts
Sources: Limited Partnership Agreement, Limited Partnership Agreement (Greenhill & Co Inc)
Guaranty. (a) Each Guarantor Borrower hereby irrevocably unconditionally and unconditionally irrevocably, guarantees to each holder Lender:
(i) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of (a) the principal ofObligations, Make-Whole Amountincluding unpaid and accrued interest thereon, 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 each case when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise)payable, (b) any other sums which may become due under all according to the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and the other Financing Documents;
(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 any time be due and payable in accordance with this Guaranty Agreement, the Notes or any of the other Financing Documents;
(iii) the due and punctual performance by the other Borrowers of all of the other terms, covenants and conditions contained in the Financing Documents; and
(iv) all the other Obligations of the other Borrowers.
(b) The obligations and liabilities of each Borrower as a guarantor under this Section 2.4.10 shall be absolute and unconditional and joint and several, irrespective of the genuineness, validity, priority, regularity or enforceability of this Agreement, any of the Notes or any of the Financing Documents or any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Guarantor hereby acknowledges and Borrower in its capacity as a guarantor expressly agrees that each Guarantor’s liability hereunder is 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 with each other Guarantor obligations and liabilities of such Borrower as a guarantor hereunder:
(i) waive compliance with, or any defaults under, or grant any other Person(sindulgences under or with respect to any of the Financing Documents;
(ii) who 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 respects 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 guarantee 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, Lender shall not be required to make any demand upon any of Borrowers, or to 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 the same action, if any, brought against any one or more of Borrowers or in separate actions or proceedings, as often as Lender may deem expedient or advisable. Without limiting the foregoing, it is specifically understood that any modification, limitation or discharge of any of the liabilities or obligations of any one or more of Borrowers, any other guarantor or any obligor under any of the Financing Documents, arising out of, or by virtue of, any bankruptcy, 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 guarantor by reason of any such proceeding, and Borrowers agree that they shall be liable for the full amount of the obligations and Indebtedness liabilities under this Section 2.4.10, regardless of, and in respect irrespective to, any modification, limitation or 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 Note Purchase Agreementamount 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 Section 2.4.10, the Notes or any of the other 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 assets of any one or more of the other Borrowers;
(viii) any act or omission of Lender which 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 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 not any credits, offsets or defenses exist with respect to this Section 2.4.10.
Appears in 2 contracts
Sources: Financing and Security Agreement (Gp Strategies Corp), Financing and Security Agreement (Gp Strategies Corp)
Guaranty. Each The Guarantor hereby irrevocably and unconditionally guarantees to each holder holder, the due and punctual payment in full of (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), and any other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), ) (b) any expenses, indemnities and other sums which may become due to the holders or the Collateral Agent under the terms and provisions of the Notes or Notes, the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, the Collateral Agreement or any other Note Document (all such obligations described in clauses (a), (b) and (cb) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility collectability and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or other Guaranteed Obligations or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when dueObligations, each the 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 United States of America, pursuant to the requirements for payment specified in the Notes Notes, the Note Agreement, the Collateral Agreement and the other Note Purchase AgreementDocuments. 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 The 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each The Guarantor hereby acknowledges and agrees that each the 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 Notes, the Note Purchase AgreementAgreement and other Note Documents.
Appears in 2 contracts
Sources: Guaranty Agreement (Global Water Resources, Inc.), Guaranty Agreement (Global Water Resources, Inc.)
Guaranty. Each Guarantor hereby irrevocably irrevocably, unconditionally and unconditionally jointly and severally with the other Guarantors guarantees to each holder holder, the due and punctual payment in full of (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), and any other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), ) and (b) any other sums which may become due under the terms and provisions of the Notes Notes, the Shelf Agreement or the Note Purchase Agreement and (c) the performance of all any other obligations of the Company under the Note Purchase Agreementinstrument referred to therein, (all such obligations described in clauses (a), (b) and (cb) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility collectability and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when dueObligations, 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 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 Note Purchase Shelf Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs to indemnify and expenses save each holder harmless from and against any damage, loss, cost or expense (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken fees) which such holder may incur or be subject to as a wholeconsequence, anddirect or indirect, if reasonably required of (x) any breach by such Guarantor, by any other Guarantor or by the Required HoldersCompany of any warranty, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialtycovenant, for term or condition in, or the holdersoccurrence of any default under, taken 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 wholeresult of any such breach or default, (y) incurred by any legal action commenced to challenge the Purchasers validity or enforceability of this Guaranty Agreement, the Notes, the Shelf Agreement or any other instrument referred to therein and each other holder of a Note in connection with (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each such Guarantor’s liability hereunder is joint and several with each the other Guarantor Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note Purchase Shelf Agreement.
Appears in 2 contracts
Sources: Private Shelf Agreement (Graybar Electric Co Inc), Private Shelf Agreement (Graybar Electric Co Inc)
Guaranty. Each Guarantor Guarantor, upon the occurrence of a Springing Recourse Event, hereby absolutely, irrevocably and unconditionally guarantees to each holder guaranties the due and punctual payment in full and performance when due, whether at stated maturity, by acceleration or otherwise, 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 ofof the Revolving Loans, Make-Whole AmountTerm Loans A, if anyTerm Loans B, Swingline Loans and the Reimbursement Obligations, and the payment of all interest, Fees, charges, attorneys’ fees and other amounts payable to any Lender or the Agent thereunder or in connection therewith; (b) any and all extensions, renewals, modifications, amendments or substitutions of the foregoing; (c) all expenses, including, without limitation, reasonable attorneys’ fees and disbursements, that are incurred by the Lenders and the Agent in the enforcement of any of the foregoing or any obligation of Guarantor hereunder; and (d) all other Obligations. For the purposes of this Guaranty, the occurrence of any of the events described in (1)-(3) below shall be a “Springing Recourse Event”:
(A) Guarantor fails to perform or comply with 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 activities as are incidental thereto, all of which 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 on 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 Borrower; (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. 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 Guarantor from third parties (including, without limitation, interest accruing after the filing of proceeds from 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 proceedingEquity Issuance), and any other amounts due under, the Notes when and as the same shall become due and payable that are held for ten (whether at stated maturity 10) Business Days or by required or optional prepayment or by acceleration or otherwise)less pending further contribution to Borrower, (bE) any such bank accounts or similar instruments (subject to the other sums which may become due terms hereof) as it deems necessary to carry out its responsibilities under the terms and provisions limited partnership agreement of the Notes or the Note Purchase Agreement Borrower, and (cF) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) tangible and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holdersintangible assets that, taken as a whole, andare de minimis in relation to the net assets of Borrower and its Subsidiaries (but which in no event shall include any real estate, if reasonably required 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 Required HoldersGuarantor from third parties (including, one local counsel 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 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 ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) any Indebtedness described in clause (f) of the 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 deemed to 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 aggregate of $30,000,000 or greater), and (D) any liability pursuant to a springing guaranty on substantially the same terms as the 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, shall be excluded from the foregoing provided such liability is not increased; and
(B) with respect to a Guarantor Covenant Breach of any event described in (1)(A)(i)-(iii) above, the passage of forty-five (45) days after the first to occur of either (i) Borrower or Guarantor becoming aware of such Guarantor Covenant Breach, or (ii) Agent notifying Borrower in writing of any such Guarantor Covenant Breach, or
(C) with respect to a Guarantor Covenant Breach of the 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 occur of either (i) Borrower or Guarantor becoming aware of such Guarantor Covenant Breach, or (ii) Agent notifying Borrower in writing of any such Guarantor Covenant Breach; or
(2) Borrower or Guarantor shall commence a voluntary case under the Bankruptcy Code of 1978, as amended, or any other federal bankruptcy or any other domestic or foreign laws relating to bankruptcy, insolvency, reorganization, winding-up, composition or adjustment of debts, in each applicable jurisdiction and/or one specialty counsel case with respect to Borrower or Guarantor, whether now or hereinafter in each applicable specialtyeffect (collectively, for the holdersa “Bankruptcy Proceeding”); or
(3) Borrower or Guarantor or any officer or director thereof shall collude with, taken as a whole) incurred by the Purchasers and each other holder of a Note or otherwise assist any party in connection with enforcing any such filing in a Bankruptcy Proceeding or defending (solicit or determining whether cause to be solicited petitioning creditors for any involuntary petition against Borrower or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty AgreementGuarantor in any such Bankruptcy Proceeding from any party. 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 guaranty under and in respect this Guaranty of the Notes Guarantied Obligations shall automatically become fully effective upon the occurrence of any Springing Recourse Event and no other documentation or notice shall be required to evidence the Note Purchase Agreementsame.
Appears in 2 contracts
Sources: Credit Agreement (Kite Realty Group, L.P.), Springing Guaranty (Kite Realty Group, L.P.)
Guaranty. Each Except as otherwise provided for herein (including under Section 3.14), each Note Guarantor hereby irrevocably agrees that it is jointly and severally liable for, and, as primary obligor and not merely as surety, and absolutely and unconditionally and irrevocably guarantees to each holder the due and punctual payment in full Collateral Agent (for the set-off of (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 proceedingSecured Parties), the full and any other amounts due underprompt payment, the Notes when and as the same shall become due and payable (due, whether at stated maturity or by required or optional prepayment or by maturity, upon acceleration or otherwise, and at all times thereafter, of the Obligations, including amounts that would become due but for the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C. §362(a), (b) together with any other sums and all expenses which may become due under be incurred by the terms Collateral Agent and provisions other Secured Parties in collecting any of the Notes or Obligations that are reimbursable in accordance with Section 5(a) of the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreementcollectively, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company Each Note Guarantor further agrees that all or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 payment of any portion of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as increased, extended or renewed in whole or in part without notice to or further assent from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal. In addition, if any or all of the Guaranteed Obligations become due and payable hereunder, each cause Note Guarantor, unconditionally and irrevocably, promises to pay such Guaranteed Obligations to the Collateral Agent for the benefit of action arisesthe Secured Parties, on demand. Each Note Guarantor agrees that unconditionally and irrevocably guarantees the Notes issued in connection with payment of any and all of the Note Purchase Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required Guaranteed Obligations whether or not due or payable by the Required Holders, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialty, for Issuer upon the holders, taken as a whole) incurred by the Purchasers and each other holder occurrence of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions any of Bankruptcy Event of Default of the Note Purchase Agreement, and thereafter irrevocably and unconditionally promises to pay such Guaranteed Obligations to 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 Collateral Agent for the obligations and Indebtedness under and in respect benefit of the Notes Secured Parties. This Note Guaranty is a continuing one and shall remain in full force and effect until the Reference Date (or, with respect to any Note Purchase AgreementGuarantor, until the release of such Note Guarantor from its obligations hereunder in accordance with Section 3.14 hereof), and all liabilities to which it applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.
Appears in 2 contracts
Sources: Note Guaranty (Li-Cycle Holdings Corp.), Note Guaranty (Li-Cycle Holdings Corp.)
Guaranty. Each Subject to Section 2.21 of the Credit Agreement, each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due Lenders and the Administrative Agent the full and punctual payment in full of (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), and any other amounts when due under, the Notes when and as the same shall become due and payable (whether at stated maturity or maturity, by required or optional prepayment or pre-payment, by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of all of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company Borrower under the Note Purchase Credit Agreement and the other Loan Documents (including, but not limited to, the principal of the Loans advanced to the Borrower, all Reimbursement Obligations of the Borrower in respect of Letters of Credit, and all interest, fees, expenses, indemnities and other amounts payable by the Borrower under the Credit Agreement), (including all such obligations described in clauses which would become due but for the operation of the automatic stay pursuant to §362(a) of the Federal Bankruptcy Code (a)Title 11, (bUnited States Code) and the operation of §502(b) of the Federal Bankruptcy Code (c) above are herein called collectively, the “Guaranteed Obligations”). The guaranty in the preceding sentence This Guaranty is an absolute, present unconditional and continuing guaranty of the full and punctual payment and performance of all such Guaranteed Obligations, and not of their collectibility only and is in no way conditional or contingent conditioned upon any requirement that the Administrative Agent or any Lender first attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 payment of any of the Guaranteed Obligations shall give rise from the Borrower or resort to a separate cause any other means of action hereunder obtaining payment. Should an Event of Default occur with respect to the payment or performance of any such Guaranteed Obligations of the Borrower, the obligations of the Guarantors under this Guaranty with respect to such Guaranteed Obligations in default shall, upon demand by the Administrative Agent, become immediately due and separate suits payable to the 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 each Guarantor. Payments by any Guarantor in respect of this Guaranty 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required HoldersAdministrative Agent on any number of occasions. All payments by any Guarantor in respect of this Guaranty shall be made to the Administrative Agent, one local counsel in each applicable jurisdiction and/or one specialty counsel the manner and at the place of payment specified in each applicable specialtythe Credit Agreement, for the holdersaccount of the Lenders and the Administrative Agent. Anything contained herein to the contrary notwithstanding, taken the obligations of each Guarantor hereunder at any time shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance as a whole) incurred by fraudulent transfer or conveyance under §548 of the Purchasers and each other holder of a Note in connection with enforcing Federal Bankruptcy Code or defending (or determining whether or how to enforce or defend) the any comparable provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase Agreementsimilar federal or state Law.
Appears in 2 contracts
Sources: Credit Agreement (White Mountains Insurance Group LTD), Credit Agreement (White Mountains Insurance Group LTD)
Guaranty. Each The Guarantor hereby unconditionally and irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of Company:
(a) the principal ofdue, Make-Whole Amount, if any, prompt and interest on (including, without limitation, interest accruing after complete payment by the filing Factor 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 all amounts due underunder the Factoring Agreement, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise)in accordance with the terms of the 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 sums which may become due agreement or document executed by the Factor pursuant to the Factoring Agreement (the Factoring Agreement and other such agreements and documents being sometimes collectively hereinafter referred to as the "Operative Documents", and the amounts payable by the Factor under the terms and provisions any of the Notes or the Note Purchase Agreement Operative Documents, and (c) the performance of all other obligations of the Company under Factor thereunder, being sometimes collectively hereinafter referred to as the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “"Guaranteed Obligations”"). The This guaranty in the preceding sentence is an absolute, present and continuing a guaranty of payment payment, performance and not of collectibility compliance and is in no way conditional conditioned or contingent upon any attempt to collect from or enforce performance or compliance by the Company or any other guarantor of the Notes Factor or upon any other action, occurrence event or circumstance condition whatsoever. In If for any reason whatsoever the event that Factor 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 other Guaranteed Obligation, the Guarantor will forthwith pay or cause to be paid such amounts to the Company shall fail so to pay any under the terms 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 kindapplicable Operative Document, in lawful money of the United States of AmericaStates, pursuant at the place specified in such Operative Document, or perform or comply with such Guaranteed Obligations or cause such Guaranteed Obligations to be performed or complied with, together with interest (in the amounts and to the requirements for payment specified in the Notes and the Note Purchase Agreement. Each default in payment of any extent required of the Guaranteed Obligations shall give rise to a separate cause of action hereunder Factor under such Operative Documents) on any amount due and separate suits may be brought hereunder as each cause of action arisesowing from the Factor. Each Guarantor agrees that The Guarantor, promptly after demand, will reimburse 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 Company for all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with collecting such amounts or otherwise enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase this Agreement, including, without limitation, the Notes fees 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 expenses of the Notes and the Note Purchase Agreementcounsel.
Appears in 2 contracts
Sources: Interfactor and Subordination Agreement (Arbinet Thexchange Inc), Interfactor and Subordination Agreement (Arbinet Thexchange Inc)
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) The Company hereby unconditionally and irrevocably guarantees to the principal ofAdministrative Agent, Make-Whole Amountfor the ratable benefit of the Lenders and their respective successors, if anyindorsees, transferees and interest on (includingassigns, 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), Hedge Bank and any other amounts due underCash Management Bank, the Notes prompt and complete payment and performance when and as the same shall become due and payable (whether at the stated maturity or by required or optional prepayment or maturity, by acceleration or otherwise), ) of the Guaranteed Obligations.
(b) The Company agrees that the Guaranteed Obligations may at any other sums which may become due under time and from time to time exceed the terms and provisions amount of the Notes liability of the Company hereunder that would exist in the absence of this Article 10 without impairing this Guarantee or affecting the Note Purchase Agreement rights and remedies of the Administrative Agent, any Lender, any Hedge Bank or any Cash Management Bank hereunder.
(c) This Guarantee shall remain in full force and effect until all the performance Guaranteed Obligations (other than Guaranteed Obligations in respect of all other obligations 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 Company under Administrative Agent, notwithstanding that from time to time during the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called term of this Guarantee the “European Borrower may be free from any Guaranteed Obligations”). The guaranty in .
(d) No payment made by the preceding sentence is an absoluteCompany, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company other guarantor or any other Person or received or collected by the Administrative Agent, any Lender, any Hedge Bank or any Cash Management Bank from the Company, any guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when due, each Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice Person by virtue of any kind, action or proceeding or any set-off or appropriation or application at any time or from time to time in lawful money reduction of the United States of America, pursuant to the requirements for payment specified in the Notes and the Note Purchase Agreement. Each default or in payment of any of the Guaranteed Obligations shall give rise be deemed to a separate cause modify, reduce, release or otherwise affect the liability of action the Company 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 which shall, notwithstanding any such payment (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required other than any payment made by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Company in respect of the Notes Guaranteed Obligations or any payment received or collected from the Company in respect of the Guaranteed Obligations), remain liable for the Guaranteed Obligations until 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 Note Purchase AgreementCommitments 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.
Appears in 2 contracts
Sources: Restatement Agreement (Constellation Brands, Inc.), Restatement Agreement (Constellation Brands, Inc.)
Guaranty. Each Guarantor The Parent Borrower hereby absolutely, irrevocably and unconditionally guarantees the full and prompt payment when due in the applicable Currency, whether at stated maturity, by acceleration, by mandatory prepayment, by notice of intention to prepay or otherwise, of all of the obligations and liabilities of each holder Subsidiary Borrower under the due and punctual payment Loan Documents, in full of (a) the principal ofeach case whether fixed, Make-Whole Amountcontingent, if anynow existing or hereafter arising, created or assumed, incurred or acquired, and interest on (including, without limitation, interest accruing whether before or after the filing occurrence of any petition Event of Default under Sections 9.1(g) or (h), including any obligation or liability in bankruptcy, or the commencement respect of any insolvencybreach of any representation or warranty, reorganization or like proceedingand all post-petition interest, funding losses and make-whole premiums, whether or not allowed as a claim for post-filing in any proceeding arising in connection with any Event of Default under Sections 9.1(g) or post-petition interest is allowed in such proceeding(h) (collectively, the "Borrower Obligations"). This Section 11 constitutes a guaranty of payment, and none of the Agents or the Lenders shall have any other amounts due underobligation to enforce any Loan Document 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 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 Borrower under this Section 11, whether fixed, contingent, now existing or hereafter arising, created, assumed, incurred or acquired (collectively, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b"Guarantor Obligations") without first proceeding against any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company Subsidiary Borrower or any other guarantor of the Notes or upon Person, and without first resorting to any other actionrights or remedies, occurrence or circumstance whatsoeveras the Administrative Agent may deem advisable. 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, andfurtherance hereof, if reasonably required 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 the Required Holderscase may be, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialty, for shall be entitled to receive hereunder from the holders, taken as a whole) incurred by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase AgreementParent Borrower after demand therefor, the Notes and this Guaranty Agreementsums which would have been otherwise due had such collection or enforcement not been prevented or hindered. 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 Notes and the Note Purchase Agreement.-77- 84
Appears in 2 contracts
Sources: Credit Agreement (Bowne & Co Inc), Credit Agreement (Bowne & Co Inc)
Guaranty. Each Guarantor hereby irrevocably irrevocably, unconditionally and unconditionally jointly and severally with the other Guarantors guarantees to each holder holder, the due and punctual payment in full of (a) the principal of, Make-Whole Amount, if any, Net Loss, 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 or by required or optional prepayment or by acceleration or otherwise), ) and (b) any other sums which may become due under the terms and provisions of the Notes or Notes, the Note Purchase Agreement and (c) the performance of all or any other obligations of the Company under the Note Purchase Agreementinstrument referred to therein, (all such obligations described in clauses (a), (b) and (cb) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when dueObligations, 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 the applicable currency of the United States of Americaobligation, pursuant to the requirements for payment specified in the 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 all reasonable and documented costs to indemnify and expenses save each holder harmless from and against any damage, loss, cost or expense (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken fees) which such holder may incur or be subject to as a wholeconsequence, anddirect or indirect, if reasonably required of (x) any breach by such Guarantor, by any other Guarantor or by the Required HoldersCompany of any warranty, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialtycovenant, for term or condition in, or the holdersoccurrence of any default under, taken this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a wholeresult of any such breach or default, (y) incurred by any legal action commenced to challenge the Purchasers validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and each other holder of a Note in connection with (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each such Guarantor’s liability hereunder is joint and several with each the other Guarantor Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note Purchase 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. Each Guarantor hereby Guarantor, jointly and severally with each other Guarantor, unconditionally and irrevocably and unconditionally guarantees to each holder the due Holders the due, prompt and punctual complete payment in full by the Company of (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)on, and any each other amounts amount due under, the Notes or the Note Purchase Agreement, when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration declaration or otherwise), (b) any other sums which may become due under in accordance with the terms and provisions of the Notes or and the Note Purchase Agreement (the Notes and (c) the performance of all other obligations of Note Purchase Agreement being sometimes hereinafter collectively referred to as the “Note Documents” and the amounts payable by the Company under the Note Purchase Agreement, Documents (all such obligations described in clauses (aincluding any attorneys’ fees and expenses), (b) and (c) above are herein called being sometimes collectively hereinafter referred to as the “Guaranteed Obligations”). The guaranty in the preceding sentence This Guaranty is an absolute, present and continuing a guaranty of payment and not just of collectibility and is in no way conditional conditioned or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other actionevent, occurrence contingency or circumstance whatsoever. In the event that If for any reason whatsoever the Company shall fail so or be unable duly, punctually and fully to pay any of such Guaranteed Obligations amounts as and when duethe same shall become due and payable, each Guarantor agrees to pay the same when due to the holders entitled theretoGuarantor, without demand, presentment, notice of acceleration, notice of intent to accelerate, protest or notice of any kind, will forthwith pay or cause to be paid such amounts to the Holders under the terms of such Note Documents, in lawful money of the United States of AmericaStates, pursuant to at the requirements for payment place specified in the 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, or perform or comply with the Notes same or cause the same to be 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. Each Guarantor, promptly after demand, will pay to the Holders the reasonable costs and expenses of collecting such amounts or otherwise enforcing this Guaranty, including, without limitation, the reasonable fees and expenses of counsel. Notwithstanding the foregoing, the right of recovery against each Guarantor under this Guaranty Agreement. Each is limited to the extent it is judicially determined with respect to any Guarantor hereby acknowledges and agrees that each entering into this Guaranty would violate Section 548 of the United States Bankruptcy Code or any comparable provisions of any state law, in which case such Guarantor shall be liable under this Guaranty only for amounts aggregating up to the largest amount that would not render such Guarantor’s liability obligations hereunder is joint and several with each other Guarantor and any other Person(s) who may guarantee the obligations and Indebtedness subject to avoidance under and in respect Section 548 of the Notes and the Note Purchase AgreementUnited States Bankruptcy Code or any comparable provisions of any state law.
Appears in 2 contracts
Sources: Guaranty (Alliance Data Systems Corp), Note Purchase Agreement (Hunt J B Transport Services Inc)
Guaranty. Each Guarantor (a) To induce the Company to enter into this Agreement, Sumitomo, intending to be legally bound, hereby absolutely, irrevocably and unconditionally guarantees guarantees, as primary obligor and not merely as surety, to each holder the Company the due and punctual payment in full of (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), and any other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company amounts payable from Parent or Merger Sub under the Note Purchase this Agreement, in each case as and when due (all such obligations described in clauses (a)collectively, (b) and (c) above are herein called the “Guaranteed Obligations”), whether now or hereafter made, incurred or created, whether absolute or contingent, liquidated or unliquidated, and however arising under this Agreement. This 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 guaranty guarantee set forth in Section 9.13(a) (the preceding sentence “Guarantee”) is an absolute, present unconditional, and continuing guaranty guarantee of the full and punctual payment by Parent and Merger Sub of the Guaranteed Obligations and not of collectibility collection and is binding upon Sumitomo and its successors and assigns, and Sumitomo irrevocably waives any right to revoke the guarantee set forth in this Section 9.13 as to future transactions giving rise to any Guaranteed Obligations. Should Parent or Merger Sub default in the payment of any of the Guaranteed Obligations, Sumitomo’s obligations hereunder will become immediately due and payable in immediately available funds to the Company or, to the extent such obligations become due and payable after the Effective Time, to the former holders of Certificates, Book-Entry Shares, Company Share Awards, or to the Indemnified Persons. Claims hereunder may be made on one or more occasions.
(d) 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 assert any claim or demand or to enforce any right or remedy against Parent or Merger Sub, except to the extent Parent or Merger Sub successfully asserts rights as a result of such failure or delay that are not the subject to subclause (iv) of this Section 9.13(d); (ii) any renewal, extension, acceleration or other change in the time, place or manner of payment of the Guaranteed Obligations or rescission, waiver, compromise, consolidation, subordination or other waiver, amendment or modification of any of the terms or provisions of this 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 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 security now or hereafter held in 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 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 Sumitomo or its assets, and defenses to the payment of the Guaranteed Obligations that are available to Parent or Merger Sub under this Agreement that are not the subject to subclause (iv) of this Section 9.13(d)). Sumitomo waives promptness, diligence, notice of the acceptance of the Guarantee and of the Guaranteed Obligations, presentment, demand for payment, notice of non-performance, default, dishonor and protest, notice of 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 or other similar Law now or hereafter in effect, any right to require the marshalling of assets of Parent or Merger Sub or any other Person interested in the Transactions, 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 way conditional delay in exercising, any right, remedy or contingent upon power pursuant to this Section 9.13 will operate as a waiver thereof, nor will any attempt single or partial exercise by the Company of any right, remedy or power pursuant to collect 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 guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken beneficiary as a wholepreference, andfraudulent transfer or otherwise, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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(ssuch payments that are so rescinded or recovered shall constitute Guaranteed Obligations.
(h) who Nothing in this Section 9.13 will waive any defenses, counterclaims, or rights of setoff that Parent or Merger Sub may guarantee the obligations and Indebtedness have under and in respect of the Notes and the Note Purchase Agreementthis Agreement or applicable Law.
Appears in 2 contracts
Sources: Merger Agreement (Urovant Sciences Ltd.), Merger Agreement (Sumitomo Chemical Co., Ltd.)
Guaranty. Each The Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (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), and any other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, Agreement (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when due, each 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 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 The Guarantor agrees that the Notes issued in connection with the Note Purchase Agreement may (but need not) make reference to this Guaranty Agreement. Each The Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder holders of a Note the Notes in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each The Guarantor hereby acknowledges and agrees that each the Guarantor’s liability hereunder is joint and several with each other Guarantor and any other Person(s) who may guarantee the obligations and Indebtedness Debt under and in respect of the Notes and the Note Purchase Agreement.
Appears in 2 contracts
Sources: Note Purchase Agreement (Kilroy Realty, L.P.), General Partner Guaranty Agreement (Kilroy Realty, L.P.)
Guaranty. Each The Guarantor hereby irrevocably and unconditionally guarantees to each holder holder, the due and punctual payment in full of (a) the principal of, Make-Whole Amount, if any, interest and interest the Excess Leverage Fee, if any, on (including, without limitation, interest and the Excess Leverage Fee 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 or by required or optional prepayment or by acceleration or otherwise), ) and (b) any other sums which may become due under the terms and provisions of the Notes or Notes, the Note Purchase Agreement and (c) the performance of all or any other obligations of the Company under the Note Purchase Agreementinstrument referred to therein, (all such obligations described in clauses (a), (b) and (cb) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when dueObligations, each 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 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 The Guarantor agrees that the Notes issued in connection with the Note Purchase Agreement may (but need not) make reference to this Guaranty Agreement. Each The Guarantor agrees to pay all reasonable and documented costs to indemnify and expenses save each holder harmless from and against any damage, loss, cost or expense (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken fees) which such holder may incur or be subject to as a wholeconsequence, anddirect or indirect, if reasonably required of (x) any breach by the Required HoldersGuarantor or by the Company of any warranty, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialtycovenant, for term or condition in, or the holdersoccurrence of any default under, taken this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a wholeresult of any such breach or default, (y) incurred by any legal action commenced to challenge the Purchasers validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and each other holder of a Note in connection with (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each The Guarantor hereby acknowledges and agrees that each the 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.
Appears in 2 contracts
Sources: Note Purchase Agreement (Caseys General Stores Inc), Note Purchase Agreement (Caseys General Stores Inc)
Guaranty. Each Subsidiary Guarantor hereby irrevocably irrevocably, unconditionally and unconditionally jointly and severally with the other Subsidiary Guarantors guarantees to each holder holder, the due and punctual payment in full of (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), and any other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), ) and (b) any other sums which may become due under the terms and provisions of the Notes or Notes, the Note Purchase Agreement and (c) the performance of all or any other obligations of the Company under the Note Purchase Agreement, instrument referred to therein (all such obligations described in clauses (a), (b) and (cb) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes (including, without limitation, any other 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 such Guaranteed Obligations when dueObligations, each Subsidiary 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 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 Purchase Agreement may (but need not) make reference to this Subsidiary Guaranty Agreement. Each Subsidiary Guarantor agrees to pay all reasonable and documented costs to indemnify and expenses save each holder harmless from and against any damage, loss, cost or expense (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken fees) which such holder may incur or be subject to as a wholeconsequence, anddirect or indirect, if reasonably required of (x) any breach by such Subsidiary Guarantor, by any other Subsidiary Guarantor or by the Required HoldersCompany of any warranty, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialtycovenant, for term or condition in, or the holdersoccurrence of any default under, taken this Subsidiary Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a wholeresult of any such breach or default, (y) incurred by any legal action commenced to challenge the Purchasers validity or enforceability of this Subsidiary Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and each other holder of a Note in connection with (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Subsidiary Guaranty Agreement. Each Subsidiary Guarantor hereby acknowledges and agrees that each such Subsidiary Guarantor’s liability hereunder is joint and several with each the other Guarantor Subsidiary Guarantors 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 provision of this Subsidiary Guaranty Agreement, each Subsidiary Guarantor hereby agrees that if at any time the Guaranteed Obligations exceed the Maximum Guaranteed Amount determined as of such time with regard to such Subsidiary Guarantor, then this Subsidiary 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 any Subsidiary Guarantor or any holder and shall be deemed to have been automatically consented to by each Subsidiary Guarantor and each
Appears in 2 contracts
Sources: Subsidiary Guaranty Agreement, Subsidiary Guaranty Agreement (Littelfuse Inc /De)
Guaranty. Each The Guarantor hereby absolutely, unconditionally and irrevocably guarantees, as primary obligor and unconditionally guarantees to each holder the due and punctual payment in full of not merely as surety,
(a) the due and prompt payment by the Parent of:
(i) the principal of, Make-Whole Amountof and premium, if any, and interest at the 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 as due, whether at scheduled maturity, date 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, interest accruing after fees and expenses of counsel incurred by the filing Creditor in enforcing any rights under this Agreement or the Note), contract causes of action and indemnities, whether primary, secondary, direct or indirect, absolute or contingent, fixed or otherwise (including monetary obligations incurred during the pendency of any petition in bankruptcy, or the commencement of any insolvency, reorganization receivership or like other similar proceeding, regardless of whether allowed or not a claim for post-filing or post-petition interest is allowed allowable 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 or by required or optional prepayment or by acceleration or otherwise), ;
(b) any other sums which may become the due under the terms and provisions prompt performance of all covenants, agreements, obligations and liabilities of the Notes Parent under or in respect of the Note Purchase Agreement and Note; and
(c) the due and prompt payment and performance of all other covenants, agreements, obligations and liabilities of the Company Guarantor under or in respect of this Agreement and the Note Purchase AgreementNote, (all such obligations described in clauses subsections (a) through (c), (b) and (c) above are herein called whether now or hereafter existing, being referred to collectively as the “Guaranteed Obligations”). .” The guaranty in Guarantor further agrees that all or part of the preceding sentence is an absoluteObligations may be increased, present and continuing guaranty of payment and not of collectibility and is in no way conditional extended, substituted, amended, renewed or contingent upon any attempt otherwise modified without notice to collect or consent from the Company or any other guarantor Guarantor and such actions shall not affect the liability of the Notes or upon any other action, occurrence or circumstance whatsoeverGuarantor hereunder. In Without limiting 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 generality of the United States of America, pursuant to the requirements for payment specified in the 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreementforegoing, the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each Guarantor’s liability hereunder is joint shall extend to all amounts that constitute part of the Obligations and several with each other Guarantor and any other Person(s) who may guarantee would be owed by Parent to the obligations and Indebtedness Creditor under and or in respect of the Notes and Note but for the Note Purchase Agreementfact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving the Parent.
Appears in 2 contracts
Sources: Exchange Agreement (Resonant Inc), Secured Subsidiary Guaranty (Resonant Inc)
Guaranty. Each Guarantor hereby irrevocably 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 unconditionally guarantees to GREAT EARTH DISTRIBUTION INC. (individually and collectively "Debtor") and knowing that Trefoil will rely upon this guaranty, the undersigned and each holder of them jointly and severally guarantee the due payment and punctual payment performance by said Debtor described in full of (a) the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of any petition in bankruptcysaid financing agreement, or the commencement of in any insolvencysupplement thereto, 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 undertransaction or agreement, the Notes when and as well as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance payment of all other obligations of which said Debtor may at any time owe to Trefoil, however created; and the Company undersigned hereby indemnify Trefoil, and 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 Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company aforesaid security agreement or any other guarantor agreement. This guaranty shall be absolute, continuing, unconditional, and unlimited. Trefoil shall be under no obligation to proceed first against the Debtor, or 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 Notes or moneys due Trefoil upon any other action, occurrence or circumstance whatsoever. 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 placement of the United States of Americaclaim 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, pursuant to the requirements for payment specified in the Notes and the Note Purchase Agreement. Each default in payment nor by any modification, release or other alteration of any of the Guaranteed Obligations shall give rise obligations hereby guaranteed, or of any security therefor, or failure to a separate cause perfect and security interest, to all of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees which the undersigned hereby consent; 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each Guarantor’s their liability hereunder is joint direct and several with each other Guarantor unconditional and may be enforced without requiring Trefoil first to any other Person(s) who right, remedy or security; and that this guaranty shall continue in force until Secured Party shall receive 30 days prior written notice by registered mail revoking it only as to future transactions. The undersigned waive: notice of acceptance hereof, notice of 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 default; and all other notices to which they might otherwise be entitled. As security, they hereby assign to Trefoil all claims of any nature which they, or any of them, may guarantee 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 courts 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 and all process upon him and consents that all such service of process be made by certified mail, return receipt requested directed to such guarantor at the address set forth below or the home address of such guarantor, if different, and service so made shall be deemed complete three days after the same shall be posted. This guaranty, all acts and transactions hereunder, and the rights and obligations of the 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 and Indebtedness under and in respect hereunder. Release of any guarantor, or the Debtor herein, shall not affect the obligations hereunder of the Notes and the Note Purchase Agreementremaining guarantors.
Appears in 2 contracts
Sources: Security Agreement (Evergood Products Corp), Security Agreement (Evergood Products Corp)
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder Holder the due and punctual payment in full of all of the following (the “Guaranteed Obligations”): (a) the all Revolver Obligations, including all principal of, Make-Whole Amount, if any, and interest on (including, without limitation, including 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 underunder or pursuant to, the Notes Loan Agreement and/or Revolver Note when and as the same shall become due and payable (whether at stated maturity or maturity, by required or optional prepayment or prepayment, by acceleration or otherwise), ; and (b) any all fees, expenses, indemnities and other sums which may become due to the Holder or Collateral Agent under or pursuant to the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Revolver Note, Loan Agreement, (all such obligations described in clauses (a), (bAgency Agreement or any other Revolver Document. The Guarantor’s liability hereunder is joint and several with any other Person(s) and (c) above are herein called the “who may guarantee any Guaranteed Obligations”). The guaranty in the preceding sentence paragraph is an absolute, present and continuing guaranty of payment and not of collectibility collectability and is in no way conditional or contingent upon on any attempt to collect from the Company or any other guarantor of the Notes Obligor any Guaranteed Obligations or upon on any other action, occurrence or circumstance whatsoever. In the event that If the Company shall fail so fails to pay any of such Guaranteed Obligations when dueObligations, each Guarantor agrees to pay the same when due to the holders Collateral Agent and/or Holder 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 Agreementrelevant Revolver Documents. Each default in payment of any of the Guaranteed Obligations shall will 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 Revolver Note Purchase Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase Agreement.
Appears in 2 contracts
Sources: Guaranty Agreement (Global Water Resources, Inc.), Guaranty Agreement (Global Water Resources, Inc.)
Guaranty. Each The Company shall use commercially reasonable efforts to have RCAP and RCS Capital Management, LLC (and their respective subsidiaries) released from their obligations as a Guarantor hereby irrevocably under the Credit Agreements and unconditionally guarantees under any other Loan Documents (as defined in the Credit Agreements) and for any Liens (as defined in the Credit Agreements) on their property (other than the Class B Share) created by any of the Security Documents (as defined in the Credit Agreements) to each holder be automatically released, effective upon the due and punctual payment Company’s repayment of the RCAP Note in full of full. The parties are executing this Agreement on the date set forth in the introductory clause. RCAP HOLDINGS, LLC By: /s/ W▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Name: W▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Title: Managing Member RCS CAPITAL CORPORATION By: /s/ B▇▇▇▇ ▇. ▇▇▇▇▇ Name: B▇▇▇▇ ▇. ▇▇▇▇▇ Title: Chief Financial Officer [See attached] THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (a) the principal ofTHE “SECURITIES ACT”), Make-Whole Amount, if anyAND MAY NOT BE OFFERED OR SOLD UNLESS REGISTERED PURSUANT TO THE SECURITIES ACT OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. FOR VALUE RECEIVED, 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 or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under subject to the terms and provisions conditions set forth herein, RCS Capital Corporation, a Delaware corporation (the “Issuer”), hereby promises to pay to the order of RCAP Holdings, LLC, a Delaware limited liability company (the “Initial Holder”), or its registered assigns the aggregate principal amount of Twelve Million Dollars ($12,000,000), together with any accrued interest added to the principal pursuant to Section 4, to be paid in such amounts and on each payment date as set forth herein, in each case together with all accrued and unpaid interest thereon as provided herein. The indebtedness evidenced by this Note (as defined below) shall constitute senior unsecured indebtedness of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase AgreementIssuer.
Appears in 2 contracts
Sources: Note Purchase and Class B Share Agreement (Schorsch Nicholas S), Note Purchase and Class B Share Agreement (RCS Capital Corp)
Guaranty. Each (a) Guarantor hereby absolutely, irrevocably and unconditionally guarantees to each holder the due and punctual payment in full and performance when due of all obligations of Obligor now or hereafter existing under the Agreement (a) collectively, 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"Guaranteed Obligations"), and agrees to pay any other amounts due underand 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 Notes phrase “when and as due” shall include when any such obligations of Obligor under the same shall become Agreement would be due and payable (or are required to be performed, whether at stated maturity or by required or optional prepayment or maturity, upon demand, by acceleration or otherwise), in accordance with the Agreement without giving effect to any stay, injunction or similar action resulting from a bankruptcy or similar proceeding or any order of any event or governmental entity affecting Obligor, such maturity, demand or acceleration being deemed to have occurred upon, the taking effect of such stay, injunction or similar action.
(b) In the event Obligor shall fail to pay any other sums which may become due amount owed to the Counterparty under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, Guarantor shall, upon written demand from Counterparty of such failure, pay or cause to be paid the amount owed within ten (all 10) business days of receipt of such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoevernotice. In the event that payment is not made in accordance with the Company foregoing sentence, the amount owed shall fail so to pay any bear interest from the date of such Guaranteed Obligations when due, each Guarantor agrees to pay the same when due demand until receipt of such payment at a rate per annum equal to the holders entitled theretoPrime Rate, without demandaccruing monthly.
(c) Notwithstanding anything to the contrary herein, presentment, protest 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 payment by Guarantor either directly or notice of any kind, in lawful money of the United States of Americaindirectly to Counterparty, pursuant to a demand made upon Guarantor by Counterparty or otherwise 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 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 requirements for payment specified obligations of Guarantor under this Guaranty are independent of the 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 Notes above notice requirement, Counterparty shall have the right to proceed first and the Note Purchase Agreement. Each default 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 payment of any respect of the Guaranteed Obligations shall give rise is required to be repaid by Counterparty pursuant to a separate cause court order in any bankruptcy or similar Legal Proceeding, Guarantor’s Obligations hereunder shall be 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 action hereunder 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 separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees agreed, however, that the Notes issued in connection with the Note Purchase Agreement may (but need not) make reference to notwithstanding any such termination, this Guaranty Agreement. Each Guarantor agrees shall continue in full force and effect with respect to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how Guaranteed Obligations arising prior to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase Agreementsuch termination.
Appears in 2 contracts
Sources: Renewable Energy Purchase Agreement, Renewable Energy Purchase Agreement
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) Each of the principal ofGuarantors hereby, Make-Whole Amountjointly and severally, if anyunconditionally and irrevocably, guarantees to the Collateral Agent, for the ratable benefit of the Secured Parties and interest on 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 acceleration or otherwise) of the Company Obligations and the performance by the Company of each of the covenants and other obligations under the Indenture and the other Note Documents, including, without limitation, interest accruing after the filing of any petition all Secured Obligations (each such Guarantor’s guarantee contained in bankruptcythis Article II, or the commencement of any insolvencycollectively, 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 or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the this “Guaranteed ObligationsGuaranty”). The guaranty in the preceding sentence This is an absolute, present and continuing guaranty a guarantee of payment and not collection and the liability of collectibility each Guarantor is primary and is not secondary.
(b) Anything herein or in any other Note Document to the contrary notwithstanding, the maximum liability of each Guarantor hereunder and under the other Note Documents shall in no way conditional or contingent upon any attempt to collect from event exceed the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of amount which can be guaranteed by such Guaranteed Obligations when due, each Guarantor agrees to pay the same when due under applicable federal and state laws relating to the holders entitled thereto, without demand, presentment, protest or notice insolvency 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 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. debtors.
(c) Each Guarantor agrees that the Notes issued in connection with Obligations may at any time and from time to time exceed the Note Purchase Agreement may 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.
(but need notd) make reference to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees that if the maturity of one special counsel any of the Company Obligations is accelerated by bankruptcy or otherwise, such maturity shall also be deemed accelerated for the holders, taken as a whole, and, if reasonably required purpose of this Guaranty without demand or notice to such Guarantor. This Guaranty shall remain in full force and effect until Payment in Full of the Company Obligations shall have occurred.
(e) No payment made by the Required HoldersCompany, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialtyany of the Guarantors, for the holders, taken as a whole) incurred any other guarantor or any other Person or received or collected by the Purchasers and each Collateral Agent or any other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) Secured Party from the provisions Company, any of the Note Purchase AgreementGuarantors, 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 guarantor or any other Person by virtue of any action or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the obligations and Indebtedness under and Secured Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by such Guarantor in respect of the Notes and Company Obligations or any payment received or collected from such Guarantor in respect of the Note Purchase AgreementCompany Obligations), remain liable for the outstanding Secured Obligations up to the maximum 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. Each Subsidiary Guarantor hereby irrevocably irrevocably, unconditionally and unconditionally jointly and severally with the other Subsidiary Guarantors guarantees to each holder holder, the due and punctual payment in full of (a) the principal of, Make-Whole 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 post‑filing or post-petition 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 or by required or optional prepayment or by acceleration or otherwise), ) and (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (cb) above are herein called the “Guaranteed Obligations”) up to the Maximum Guaranteed Amount (as defined below). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility collectability and is in no way conditional or contingent upon any attempt to collect from the Company any Obligor or any other guarantor 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 such Guaranteed Obligations when dueObligations, each Subsidiary Guarantor agrees to pay any unpaid amount of the same Guaranteed Obligations 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 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 Purchase Agreement may (but need not) make reference to this Subsidiary Guaranty Agreement. Each Subsidiary Guarantor agrees to pay all reasonable and documented costs to indemnify and expenses save each holder harmless from and against any damage, loss, cost or expense (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken fees) which such holder may incur or be subject to as a wholeconsequence, anddirect or indirect, if reasonably required of (x) any breach by such Subsidiary Guarantor, by any other Subsidiary Guarantor or by any Obligor of any warranty, covenant, term or condition in, or the Required Holdersoccurrence of any default under, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialtythis Subsidiary Guaranty Agreement, for the holdersNotes, taken or the Note Agreement, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a wholeresult of any such breach or default, (y) incurred by any legal action commenced to challenge the Purchasers validity or enforceability of this Subsidiary Guaranty Agreement, the Notes, or the Note Agreement, and each other holder of a Note in connection with (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Subsidiary Guaranty Agreement. Each Subsidiary Guarantor hereby acknowledges and agrees that each such Subsidiary Guarantor’s liability hereunder is joint and several with each the other Guarantor Subsidiary Guarantors, the Parent and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note Purchase 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 irrevocably, unconditionally and unconditionally jointly and severally with the other Guarantors guarantees to each holder the due and punctual payment in full of (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), and any other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), ) and (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (cb) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company 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 Company Issuer 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 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 all reasonable and documented costs to indemnify and expenses save each holder harmless from and against any loss, cost or expense (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken fees) which such holder may incur as a wholeresult of (x) any breach by such Guarantor, and, if reasonably required by any other Guarantor or by the Required HoldersIssuer or the Parent of any warranty, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialtycovenant, for term or condition in, or the holdersoccurrence of any default under, taken this Guaranty Agreement, the Notes or the Note Purchase Agreement, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a wholeresult of any such breach or default, (y) incurred by any legal action commenced to challenge the Purchasers validity or enforceability of this Guaranty Agreement, the Notes or the Note Purchase Agreement and each other holder of a Note in connection with (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, the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each 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 provision of this Guaranty Agreement, if at any time the Guaranteed Obligations exceed the Maximum Guaranteed Amount determined as
Appears in 2 contracts
Sources: Note Purchase Agreement (CoreSite Realty Corp), Note Purchase Agreement (CoreSite Realty Corp)
Guaranty. Each The Guarantor does hereby irrevocably absolutely and unconditionally guarantees unconditionally, represent, warrant and guarantee to each holder the due and punctual payment in full of Lender that:
(a) All Accounts from time to time reported to Lender as Eligible Accounts or otherwise listed or included on any Borrowing Base Certificate shall be genuine Accounts owned by the principal ofCredit Parties and in all respects what they purport to be and shall, Make-Whole Amountin the case of Accounts, if anyrepresent bona fide and existing obligations of Account Debtors to the Credit Parties.
(b) All reports, schedules, certificates, and interest on other information from time to time delivered or otherwise reported to Lender by Borrower, including, without limitation, all financial statements, tax returns, and Borrowing Base Certificates and all supporting information or documentation delivered in connection therewith, shall be bona fide, complete, correct, and accurate in all material respects and shall accurately and completely report all matters purported to be covered or reported thereby.
(c) Each Account from time to time identified to Lender in any Borrowing Base Certificate as an Eligible Account shall, as of the date of such Borrowing Base Certificate, constitute an Eligible Account in accordance with the terms of the Credit Agreement.
(d) The Guarantor may from time to time, sign and deliver reports (including, without limitation, interest accruing after those specifically mentioned above) or otherwise deliver any such information to Lender as Lender may request, and the filing Guarantor are duly authorized to deliver same to Lender on behalf of any petition in bankruptcyeach 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 commencement of any insolvencyCredit Agreement.
(f) All Collateral: (i) will be owned by the Credit Parties and will be possessed by the Credit Parties or their agents, 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 respectively and as the same shall become due and payable applicable; (whether at stated maturity ii) will not be subject to any lien or security interest except as permitted by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement Lender; and (ciii) will be maintained only at the performance of all other obligations of locations designated in the Company under the Note Purchase Credit Agreement or Security Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called unless the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each GuarantorCredit Parties obtain Lender’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 Agreementprior 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. Each The Guarantor hereby irrevocably and unconditionally guarantees to each holder the payment when due and punctual payment in full of (a) the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of any petition in bankruptcyand all indebtedness and the satisfaction and performance when required of all covenants, 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), obligations and any other amounts due underliabilities (collectively, the Notes when "Obligations and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (bLiabilities") any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase this Agreement, (. If any or all such obligations described in clauses (a), (b) Obligations and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty Liabilities of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company hereunder are not timely satisfied by the Company, the Guarantor unconditionally promises to perform or any other guarantor of the Notes cause to be performed such Obligations and Liabilities to RMST or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when due, each Guarantor agrees to pay the same when due to the holders entitled theretoRMST, without demand, presentment, protest or notice deduction of any kind, in lawful money of the United States of AmericaStates, pursuant to the requirements for payment specified in the Notes and the Note Purchase Agreement. Each default in payment of any amount of the Guaranteed Obligations Obligation and Liability if the same shall give rise to be monetary in nature. The Guarantor acknowledges that a separate cause of action hereunder and separate suits or actions may be brought hereunder 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 each cause shall be required by applicable law providing the same cannot be waived), and without affecting or impairing the liability of action arises. Each the Guarantor agrees that the Notes issued under this Section, from time to time in connection accordance with this Agreement or by mutual agreement with the Note Purchase Agreement may (but need not) make reference 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 Guaranty Agreement. Each The Guarantor agrees waives notice of dishonor, notice of acceptance, any right to pay require RMST to proceed against the Company, or to pursue any other remedy in RMST's power whatsoever. Until all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase AgreementObligations and 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 contribution and subrogation from 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 Notes and the Note Purchase AgreementCompany.
Appears in 2 contracts
Sources: Mortgage Purchase Agreement (Homegold Financial Inc), Mortgage Purchase Agreement (Austin Funding Com Corp)
Guaranty. Each In consideration of Assignee's financing the purchase of the Equipment, each Guarantor hereby unconditionally, irrevocably and unconditionally guarantees to each holder the due absolutely guarantees, jointly and punctual severally, II re prompt and full payment in full of (a) the principal ofand performance when due, 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 or by required or optional prepayment or by acceleration or otherwise, of all Lessee's obligations under the Lease from time to time (the Lease"), (b) any without offset or other sums deduction; consents, without notice, to all acts and omissions that would or might otherwise impair or affect this Guaranty or on which may become due under the terms and provisions this Guaranty might be conditioned including without limitation extension or modification of the Notes Lease, replacement or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 payment release of any of the Guaranteed Obligations shall give rise to a separate cause Equipment, and exercise or delay in exercise or waiver of action hereunder any right or remedy of Assignee; 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 all reasonable on demand each cost and documented costs and expenses expense of Assignee in enforcing this Guaranty including without limitation attorneys' fees (including reasonable infernal counsel's fees) and documented attorneys’ fees disbursements. This is a guaranty of one special counsel 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 holdersLease must be returned pursuant to any bankruptcy law, taken as a whole, and, if reasonably required this Guaranty shall be automatically reinstated until all Lessees obligations to ~ i II. Guaranty shall be governed by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions internal laws of the Note Purchase Agreement, state in which the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each Guarantor’s liability hereunder Lessee is joint and several with each other Guarantor and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect incorporated as of the Notes date :f this Lease. Guarantor Signature ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ Guarantor Signature ACKNOWLEDGMENT STATE OF ~ ~ ---~-- SS: COUNTY OF _____ - ~ _~. On the day of in the year 20_ , before me personally came __________ -. to me known and known to me to be the Note Purchase Agreementperson(s) described in and who executed the above instrument, and ~he (they jointly and severally) acknowledged to me that _he (they) executed the same.
Appears in 2 contracts
Sources: Equipment Lease (Compliance Systems Corp), Equipment Lease (Compliance Systems Corp)
Guaranty. Each (a) To induce Lender to make the Term Loan, Guarantor hereby hereby, jointly and severally, absolutely, unconditionally and irrevocably guarantees, as primary obligor and unconditionally guarantees to each holder not merely as surety, the due full and punctual payment in full of (a) the principal ofwhen due, 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 or earlier, by required or optional reason of acceleration, mandatory prepayment or by acceleration or otherwise)otherwise in accordance with this Agreement, (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other the obligations of Borrower whether existing on the Company under the Note Purchase Agreement, date hereof or hereinafter incurred or created (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty .
(b) Guarantor hereby waives and agrees not to assert any defense, and hereby agrees that its obligations under this section are irrevocable, absolute and unconditional and shall not be discharged as a result of or otherwise affected, other than indefeasible payment in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor full of the Notes Guaranteed Obligations.
(c) Guarantor hereby unconditionally and irrevocably waives and agrees not to assert any claim, defense, setoff or upon any other actioncounterclaim based on diligence, occurrence or circumstance whatsoever. 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 demandpromptness, presentment, requirements for any demand or notice hereunder including any of the following: (a) any demand for payment or performance and protest and notice of protest; (b) any notice of acceptance; (c) any presentment, demand, protest or further notice or other requirements of any kindkind with respect to any Guaranteed Obligation (including any accrued but unpaid interest thereon) becoming immediately due and payable; and (d) any other notice in respect of any Guaranteed Obligation or any part thereof, and any defense arising by reason of any disability or other defense of Borrower. Until the Guaranteed Obligations have been indefeasibly paid in lawful money full, Guarantor further unconditionally and irrevocably agrees not to enforce or otherwise exercise any right of the United States subrogation or any right of Americareimbursement 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, pursuant to the requirements for payment specified in the Notes and by its acceptance this guaranty, Lender, hereby confirm that it is their intention that this Guaranty and the Note Purchase AgreementGuaranteed Obligations not constitute a fraudulent transfer or conveyance under any applicable laws. Each default in payment of any of To effectuate the foregoing intention, Lender and Guarantor hereby irrevocably agree that the Guaranteed Obligations shall give rise be limited to the maximum amount as will result in the Guaranteed Obligations not constituting 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required Holders, one local counsel in each fraudulent transfer or conveyance under any applicable jurisdiction and/or one specialty counsel in each applicable specialty, for the holders, taken as a whole) incurred by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase Agreementlaws.
Appears in 2 contracts
Sources: Credit Agreement (Rentech Nitrogen Partners, L.P.), Credit Agreement (Rentech Inc /Co/)
Guaranty. Each As collateral security for the payment, performance and observation of all of the Guaranteed Indebtedness (as defined below), Guarantor hereby irrevocably pledges and unconditionally guarantees assigns to each holder Bank a continuing security interest in and to all of Guarantor’s right, title and interest in the due TESPA Agreement and punctual payment the RESPA Agreement and all assets and property acquired by Guarantor pursuant to the terms thereof (whether Guarantor has acquired an ownership interest in full the same or a security interest in the same) (all of the foregoing, collectively, the “Collateral”), which Collateral shall include without limitation (a) any deposit and securities accounts into which any Excess Servicing Spread in respect 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, Mortgage Loans 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 underassociated with the MSR Mortgage Loans or Pledged Servicing Rights are deposited, including the Notes when and deposit accounts specified as the same shall become due “Distribution Account” under the TESPA Agreement or the RESPA Agreement together with all money, instruments, certificates of deposit, and payable (whether at stated maturity other property of Guarantor now or by required or optional prepayment or by acceleration or otherwise), hereafter held in any such account; (b) any other sums which may become due under right to any Excess Servicing Spread associated with the terms and provisions of Mortgage Loans or Pledged Servicing Rights, including the Notes “True Excess Spread” as defined in the TESPA Agreement or any “Reference Spread” as defined in the Note Purchase Agreement and RESPA Agreement; (c) the performance of all other obligations rights to have and receive any of the Company under the Note Purchase AgreementCollateral described above, (all such obligations described in clauses (a), (b) accessions or additions to and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay substitutions for any of such Guaranteed Obligations when dueCollateral, each Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice together with all renewals and replacements of any kindof such Collateral, all other rights and interests now owned or hereafter acquired by Guarantor in, under or relating to any of such Collateral or referred to above and all proceeds of any of such Collateral and (d) any instruments, documents or writings evidencing any monetary obligation, contract right, account or security interest in lawful money any of the United States of America, pursuant such property or its proceeds accruing or accrued and all other rights and interests in and to the requirements any and all security for payment specified or claims against others in the Notes and the Note Purchase Agreement. Each default in payment respect of any of the Guaranteed Obligations shall give rise property described or referred 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 definition; all reasonable and documented costs and expenses books, records, contract rights, instruments, documents (including reasonable all documents of title), chattel paper and documented attorneys’ fees proceeds relating to, arising from or by virtue of one special counsel or collections with respect to, or comprising part of, any of such property described or referred to herein, including all insurance and claims for insurance effected or held for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder benefit of a Note in connection with enforcing Borrower or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Bank in respect of any of the Notes foregoing, in each case whether now existing or hereafter arising, accruing or accrued; and all other rights and interests in and to any and all security for or claims against others in respect of any of the Note Purchase Agreementrights, interests and property described or referred to herein.
Appears in 1 contract
Sources: Limited Guaranty, Pledge and Security Agreement (GlassBridge Enterprises, Inc.)
Guaranty. Each Guarantor hereby irrevocably irrevocably, unconditionally and unconditionally jointly and severally with the other Guarantors guarantees to each holder holder, the due and punctual payment in full of (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), and any other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), ) and (b) any other sums which may become due under the terms and provisions of the Notes or Notes, the Note Purchase Agreement and (c) Agreement, the performance of all other obligations of the Company under the Note Purchase AgreementDocuments or any other instrument referred to therein, (all such obligations described in clauses (a), (b) and (cb) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility collectability and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when dueObligations, 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 Notes, the Note Purchase Agreement, or the other Note Documents. 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 all reasonable and documented costs to indemnify and expenses save each holder harmless from and against any damage, loss, cost or expense (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken fees) which such holder may incur or be subject to as a wholeconsequence, anddirect or indirect, if reasonably required of (x) any breach by such Guarantor, by any other Guarantor or by the Required HoldersCompany of any warranty, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialtycovenant, for term or condition in, or the holdersoccurrence of any default under, taken this Guaranty Agreement, the Notes, the Note Agreement, the other Note Documents or any other instrument referred to therein, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a wholeresult of any such breach or default, (y) incurred by any legal action commenced to challenge the Purchasers validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement, the other Note Documents or any other instrument referred to therein and each other holder of a Note in connection with (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each such Guarantor’s liability hereunder is joint and several with each the other Guarantor Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and Notes, the Note Purchase Agreement., or the other Note Documents. Notwithstanding the foregoing provisions or any other provision of this Guaranty Agreement, 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 regard to such 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 any Guarantor or any holder and shall be deemed to have been automatically consented to by each Guarantor and each holder. Each
Appears in 1 contract
Sources: Note Purchase and Private Shelf Agreement (Primoris Services Corp)
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) the principal ofParent hereby absolutely, Make-Whole Amountunconditionally and irrevocably guarantees, if anyas primary obligor and not merely as surety, 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 underto Seller, the Notes when Company Group and as their successors and permitted assigns, the same shall become due full payment and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other payment obligations of and Liabilities, covenants and agreements, in each case, required to be paid or reimbursed by Buyer under or relating to this Agreement (including the Company under Earnout Payments contemplated in Exhibit E hereto) (in each case, subject to the Note Purchase Agreementterms hereof) (collectively, (all such obligations described in clauses (a), (b) and (c) above are herein called 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 by Buyer or Parent. The ▇▇▇▇▇▇ agrees that the guaranty in the preceding sentence under this Section 13.20 is an absolute, unconditional, irrevocable, present and continuing guaranty guarantee of payment and performance, not of collectibility collection, and is 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 no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 payment of any full of the Guaranteed Obligations by Buyer or Parent. In no event shall give rise any Seller or Parent Company have any obligation 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 proceed against Buyer before seeking satisfaction from Parent.
(but need notb) make reference to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges Parent covenants and agrees that each Guarantor’s liability hereunder is joint Parent shall either (i) cause Buyer to pay such amounts as and several when it shall become due and payable or (ii) if not so paid by Buyer in accordance with each other Guarantor 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.
(c) Notwithstanding anything to the contrary contained in this Section 13.20 or otherwise, the Sellers, Parent Companies and any other Person(s) who may their respective Affiliates hereby agree that Parent shall have all defenses to its obligations under this guarantee that would be available to the obligations and Indebtedness under and Buyer. The guaranty contained in respect this Section 13.20 shall terminate automatically following the payment, discharge or satisfaction in full of all of the Notes and the Note Purchase AgreementGuaranteed Obligations.
Appears in 1 contract
Sources: Purchase Agreement (Gogo Inc.)
Guaranty. Each Reference is made to that certain employment agreement dated as of April 16, 1998, between Landmark Theatre Corp. ("Employer") and Paul ▇. ▇▇▇▇▇▇▇▇▇▇ ("▇mployee") and the 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 and unconditionally guarantees to Employee the full and timely performance of each holder and every contractual obligation of Employer under the due and punctual payment in full of (a) the principal ofAgreement, 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 all payment obligations (whether at stated maturity or by required or optional prepayment or by acceleration fixed, contingent, deferred, net profits or otherwise), all credit obligations and all indemnity obligations (b) collectively, the "Guaranteed Obligations"). Guarantor's obligations hereunder are direct and primary to Employee and are independent of the obligations of the Employer and, in the event of any other sums which default hereunder, a separate action or actions may become due under 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. Guarantor agrees that any modification of the Agreement by the parties thereto shall not affect this Guaranty. Without further authorization from, demand upon or notice to Guarantor and without affecting Guarantor's liability hereunder, the parties to the Agreement may, in accordance with the terms and provisions of the Notes Agreement (i) alter, compromise, accelerate, extend or change the Note Purchase Agreement and time or manner of payment and/or performance of any of the Guaranteed Obligations; (cii) release or add any one or more guarantors or endorsers; or (iii) accept, surrender, release, reconvey (partially or otherwise), exchange or alter any security of any kind now or hereafter given by Employer to secure the performance of all other 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 way affect any of the duties or obligations of Guarantor except to the Company extent that such failure, omission or delay constitutes a waiver under the Note Purchase 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 Employer against Employee are in any way impaired or suspended. 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 the protection of, and 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, protest, notice of protest and notice of dishonor of the Agreement or 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 Guarantor waives any defense arising out of, relating to or based upon, (i) a change of ownership of or legal title to the Employer or any rights therein or any rights under the Agreement, whether effected without or without the consent of Employee; (all such obligations described ii) the dissolution, termination, legal incapacity, lack of authority, revocation, recission, disability, insolvency, bankruptcy or reorganization of Employer or the defense of any statute of limitations in clauses any action hereunder or for the collection or performance of any Guaranteed Obligation; (a)iii) election of remedies or marshalling of assets; (iv) the Agreement constituting a fraudulent transfer; (v) Employee failing to proceed against (or otherwise exercise any of its rights against) the Employer, (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes Guaranteed Obligations, or upon any other actionperson, occurrence firm, corporation or circumstance whatsoeverother entity or failing to proceed against or exhaust any security held by him at any time or failing to pursue any other 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 have reason to believe that such facts are unknown to Guarantor or have a reasonable opportunity to communicate such facts to Guarantor; or (vii) 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 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 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 payment maturity of any of the Guaranteed Obligations is accelerated, such maturity shall give rise 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 a separate cause any indebtedness of action hereunder and separate suits may 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 Guarantor would otherwise be brought hereunder as each cause entitled. Until all of action arisesthe 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. Each 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 Notes issued proceeds realized from any security which may be held by Employee in connection with such manner and order of priority as Employee see fit, all without affecting the Note Purchase Agreement 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 (but need not) make reference maintain a separate action against Employer without in any manner waiving or compromising any rights which he may have against Guarantor. Employee's rights hereunder are cumulative and shall not be exhausted by any number of successive actions until and unless all of the 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 suit, including without limitation, reasonable attorney's fees.
9. This Guaranty shall inure to the benefit of Employee and his successors and assigns. Employee may assign his rights under this Guaranty Agreement. Each Guarantor agrees pursuant to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees the terms of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the assignment provisions of the Note Purchase Agreement.
10. Except as otherwise set forth herein, the Notes and Guarantor's obligations under this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each Guarantor’s liability hereunder is joint and several are subject to all defenses which Employer may have against Employee with each other Guarantor and any other Person(s) who may guarantee respect to the obligations and Indebtedness under and in respect enforcement of the Notes Guaranteed Obligations.
11. This Guaranty shall be governed by California law and Guarantor submits to the Note Purchase Agreementexclusive jurisdiction of its courts, including the federal courts within California.
Appears in 1 contract
Guaranty. Each In consideration for, as a condition of, and as an inducement to AZ-Tempe Luke Limited Partnership (the "SELLER") which is an affiliate of Medical Office Portfolio Limited Partnership, a Florida limited partnership, entering into that certain Purchase and Sale Agreement dated October 24, 2005 (the "AGREEMENT"), with Windrose Tempe Properties, L.P., a Delaware limited partnership (the "BUYER") which is an affiliate of Windrose Medical Properties Trust, a Maryland REIT ("GUARANTOR"), and for other good and valuable consideration, Guarantor hereby irrevocably covenants and unconditionally guarantees agrees to each holder the due and punctual payment in full of with Seller that if (a) default shall at any time be made by Buyer under the principal Agreement, (b) Buyer is liable to Seller for liquidated damages or otherwise as provided in the Agreement, and (c) such payment shall not be made as and when due, then Guarantor will forthwith pay said liquidated damages to Seller; provided, however, that in no event shall the liability of Guarantor for any and all such liquidated damages under the Agreement exceed the maximum aggregate amount of Three Hundred Thousand Dollars ($300,000.00). This Guaranty is a guaranty of payment (and not of collection) and is a surety agreement. Guarantor's liability hereunder is primary and direct and may be enforced without Seller being required to resort to any other right, remedy or security, and this Guaranty shall be enforceable against Guarantor, without the necessity for any suit or proceedings on Seller's part of any kind or nature whatsoever against Buyer, and without the necessity of any notice of non-payment, non-performance or non-observance or the continuance of any such default or of any notice of acceptance, protest, dishonor or presentment of this Guaranty or of Seller's intention to act in reliance hereon or of any other notice or demand to which Guarantor might otherwise be entitled, all of which Guarantor hereby expressly waives. This Guaranty shall be a continuing Guaranty, and (whether or not Guarantor shall have notice or knowledge of any of the following) the liability and obligation of Guarantor hereunder shall remain in full force and effect without regard to, and shall not be released, discharged or in any way impaired by (a) any amendment or modification of, Makeor supplement to, or extension or renewal of, the Agreement; (b) any exercise or non-Whole Amountexercise of any right, power, remedy or privilege under or in respect of the Agreement or this Guaranty or any waiver, consent or approval by Seller with respect to any of the covenants, terms, conditions or agreements contained in the Agreement; (c) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding relating to Buyer, or its properties (including without limitation any rejection or disaffirmance of the Agreement in any such proceedings); (d) any limitation on the liability or obligation of Buyer under the Agreement or its estate in bankruptcy or of any remedy for the enforcement thereof, resulting from the operation of any present or future provision of the federal bankruptcy law or any other statute or from the decision of any court; or (e) any permitted transfer by Buyer or any permitted assignment, mortgage or pledge of its interest under the Agreement. All of Seller's rights and remedies under the Agreement and under this Guaranty are intended to be distinct, separate and cumulative and no such right and remedy therein or herein mentioned is intended to be in exclusion of or a waiver of any of the others. Guarantor further agrees that, to the extent that Buyer or Guarantor makes a payment to Seller, which payment or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to Buyer or Guarantor or their respective estate, trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, this Guaranty and the damages or part thereof which have been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred. This Guaranty shall be legally binding upon Guarantor and its successors and assigns and shall inure to the benefit of Seller and its successors and assigns. Reference herein to Buyer shall be deemed to include Buyer and its successors and assigns. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO CONFLICTS OF LAW. If any legal action, arbitration, or other proceeding is brought for the enforcement of this Guaranty, or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Guaranty, the successful or prevailing party or parties shall be entitled to recover reasonable attorney's fees, costs and all expenses even if any, and interest on not taxable as costs (including, without limitation, interest accruing after the filing of any petition all such fees, costs and expenses incident to appeals), incurred in bankruptcy, that action or the commencement of any insolvency, reorganization or like proceeding, whether in addition to any other relief to which such party or not parties may be entitled. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if personally delivered; mailed, first class postage prepaid; or sent by independent overnight courier to the parties at the following addresses: If to Guarantor: Windrose Medical Properties, L.P. 3502 Woodview Trace, Suite 210 ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Telecopi▇▇ ▇▇.: ▇▇▇-860-9190 With a claim for postcopy to: Daniel R. Loftus, ▇▇▇. General ▇▇▇▇▇▇▇ Windrose Medical Properties Trust 3502 Woodview Trace, Suite 210 ▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.: ▇▇▇-filing ▇▇▇-▇▇▇▇ If to Seller: AZ-TEMPE LUKE Lim▇▇▇▇ ▇▇▇▇▇▇▇ship 3801 PGA Boulevard, Suite 600 P▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Facsimile No. 561/622-4420 With a copy to: Lawrence J. Diamond, P.A. 3801 ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇e 600 P▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇q. Facsi▇▇▇▇ ▇▇. ▇▇▇/▇▇▇-▇▇60 or post-petition interest is allowed to any such other address as any party hereto shall designate to the other parties in such proceeding)writing. This Guaranty and the Agreement constitutes the entire agreement, and supersedes all prior agreements, conduct and understandings, both written and oral, between Guarantor and Seller with respect to the subject matter hereof. If any other amounts due underclause, provision or section of this Guaranty be held illegal or invalid by any court, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any validity of such Guaranteed Obligations when dueclause, each Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest provision 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 payment of section shall not affect 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holdersremaining clauses, taken as a wholeprovisions or sections hereof, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreementshall be construed and enforced as if such illegal or invalid clause, provision or section had not been contained herein. Each Guarantor hereby acknowledges In case any agreement or obligation contained in this Guaranty be held to be in violation of law, then such agreement or obligation shall be deemed to be the agreement or obligation of Guarantor, as the case may be, to the full extent permitted by law. The provisions of this Guaranty may be waived or amended, as to any particular transaction or otherwise, only by an instrument in writing executed by or on behalf of all parties to this Guaranty. No subsequent oral agreements or understandings, or conduct of any nature, shall be effective to modify any provision of, or limit the rights or remedies of any party under, this Guaranty, and agrees that each Guarantor’s liability hereunder is joint and several with each other Guarantor and no party may rely on any other Person(s) who may guarantee the obligations and Indebtedness under and in respect such oral agreements or understandings, or conduct of the Notes and the Note Purchase Agreementany nature. THE PARTIES HERETO HEREBY MUTUALLY WAIVE ANY RIGHT TO A TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR IN ANY WAY PERTAINING OR RELATING TO THIS AGREEMENT, ANY DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT, OR IN CONNECTION WITH ANY OF THE TRANSACTIONS RELATED HERETO OR CONTEMPLATED HEREBY, OR THE EXERCISE OF ANY PARTY'S RIGHTS OR REMEDIES HEREUNDER, IN ALL OF THE FOREGOING CASES WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. A COPY OF THIS PARAGRAPH MAY BE FILED WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY, AND THAT ANY DISPUTE OR CONTROVERSY WHATSOEVER BETWEEN THEM SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. NONE OF THE PARTIES HERETO HAVE REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THEY WOULD NOT, IN THE EVENT OF SUCH DISPUTE OR CONTROVERSY, SEEK TO ENFORCE THE PROVISIONS OF THIS PARAGRAPH.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Windrose Medical Properties Trust)
Guaranty. Each The Guarantor hereby irrevocably and unconditionally guarantees to each holder holder, the due and punctual payment in full of (a) the principal of, Make-Whole 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 or by required or optional prepayment or by acceleration or otherwise), ) and (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (cb) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility collectability and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes Notes, if any, or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when dueObligations, each 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 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 The Guarantor agrees that the Notes issued in connection with the Note Purchase Agreement may (but need not) make reference to this Guaranty Agreement. Each The Guarantor agrees to pay all reasonable and documented costs to indemnify and expenses save each holder harmless from and against any damage, loss, cost or expense (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken ' fees) which such holder may incur or be subject to as a wholeconsequence, anddirect or indirect, if reasonably required of (x) any breach by the Required HoldersGuarantor or by the Company of any warranty, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialtycovenant, for term or condition in, or the holdersoccurrence of any default under, taken 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 wholeresult of any such breach or default, (y) incurred by any legal action commenced to challenge the Purchasers validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and each other holder of a Note in connection with (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each Notwithstanding any provision to the contrary contained herein or in the Note Agreement or the Notes, the obligations of the 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 subject to avoidance under the federal bankruptcy laws or any comparable provision of any applicable state law. The Guarantor hereby acknowledges and agrees that each the Guarantor’s '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.
Appears in 1 contract
Guaranty. Each Guarantor 14.1. Parent hereby absolutely, irrevocably and unconditionally guarantees to each holder the due prompt, full and punctual complete payment in full when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of (a) the principal of, Make-Whole Amount, if any, of and interest on the Advances made by the Lenders to, and the Notes held by the Lenders of, the Borrower and (b) all other amounts from time to time owing to the Lenders by the Borrower under this Agreement, the Notes and the other Loan Documents, including without limitation all Obligations of the Borrower (solely for purposes of this Article XIV, collectively referred to as ----------- the "Guaranteed Debt"). This is a guaranty of payment, not a guaranty of collection.
14.2. Parent waives notice of the acceptance of this Article XIV ----------- (solely for purposes of this Article XIV, referred to as the "Guaranty") and of ----------- the extension or incurrence of the Guaranteed Debt or any part thereof. Parent further waives all setoffs and counterclaims and presentment, protest, notice, filing of claims with a court in the event of receivership, bankruptcy or reorganization of the Borrower, demand or action on delinquency in respect of the Guaranteed Debt or any part thereof, including any right to require the Agent or any Lender to ▇▇▇ the Borrower, or any other person obligated with respect to the Guaranteed Debt or any part thereof, or otherwise to enforce payment thereof against any collateral securing the Guaranteed Debt or any part thereof.
14.3. Parent hereby agrees that, to the fullest extent permitted by law, its obligations hereunder shall be continuing, absolute and unconditional under any and all circumstances and not subject to any reduction, limitation, impairment, termination, defense (other than indefeasible payment in full), setoff, counterclaim or recoupment whatsoever (all of which are hereby expressly waived by it to the fullest extent permitted by law), whether by reason of any claim of any character whatsoever, including, without limitation, interest accruing after the filing any claim of any petition in bankruptcywaiver, or the commencement of any insolvencyrelease, reorganization or like proceedingsurrender, 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 or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase Agreement.alteration or
Appears in 1 contract
Sources: Credit Agreement (Fund American Enterprises Holdings Inc)
Guaranty. Each Guarantor hereby Guarantor, jointly and severally with each other Guarantor, unconditionally and irrevocably and unconditionally guarantees to each holder the due Holders the due, prompt and punctual complete payment in full by the Company of (a) the principal of, Makemake-Whole Amountwhole 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)on, and any each other amounts amount due under, the Notes or the Note Purchase Agreement, when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under in accordance with the terms and provisions of the Notes or and the Note Purchase Agreement (the Notes and (c) the performance of all other obligations of Note Purchase Agreement being sometimes hereinafter collectively referred to as the “Note Documents” and the amounts payable by the Company under the Note Purchase AgreementDocuments, and all other monetary obligations of the Company thereunder (all such obligations described in clauses (aincluding any attorneys’ fees and expenses), (b) and (c) above are herein called being sometimes collectively hereinafter referred to as the “Guaranteed Obligations”). The guaranty in the preceding sentence This Guaranty is an absolute, present and continuing a guaranty of payment and not just of collectibility and is in no way conditional conditioned or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other actionevent, occurrence contingency or circumstance whatsoever. In the event that If for any reason whatsoever the Company shall fail so or be unable duly, punctually and fully to pay any of such Guaranteed Obligations amounts as and when duethe same shall become due and payable, each Guarantor agrees to pay the same when due to the holders entitled theretoGuarantor, without demand, presentment, protest or notice of any kind, will forthwith pay or cause to be paid such amounts to the Holders under the terms of such Note Documents, in lawful money of the United States of AmericaStates, pursuant to at the requirements for payment place specified in the 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, or perform or comply with the Notes same or cause the same to be 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. Each Guarantor, promptly after demand, will pay to the Holders the reasonable costs and expenses of collecting such amounts or otherwise enforcing this Guaranty, including, without limitation, the reasonable fees and expenses of counsel. Notwithstanding the foregoing, the right of recovery against each Guarantor under this Guaranty Agreement. Each is limited to the extent it is judicially determined with respect to any Guarantor hereby acknowledges and agrees that each entering into this Guaranty would violate Section 548 of the United States Bankruptcy Code or any comparable provisions of any state law, in which case such Guarantor shall be liable under this Guaranty only for amounts aggregating up to the largest amount that would not render such Guarantor’s liability obligations hereunder is joint and several with each other Guarantor and any other Person(s) who may guarantee the obligations and Indebtedness subject to avoidance under and in respect Section 548 of the Notes and the Note Purchase AgreementUnited States Bankruptcy Code or any comparable provisions of any state law.
Appears in 1 contract
Sources: Guaranty (Tetra Technologies Inc)
Guaranty. Each (a) The Guarantor hereby irrevocably and unconditionally unconditionally, guarantees to each holder the due and punctual payment when due of all payment obligations of the 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 payable under the Credit Agreement, including amounts that would become due but for the operation of the automatic stay under Section 362(c) of the United States Bankruptcy Code or similar provisions under the laws of the Bahamas, The Netherlands, the United Mexican States or other applicable law (collectively, the "Guaranteed Obligations"). In the event that any of the ---------------------- Guaranteed Obligations shall not be paid when due within any specified grace period provided for in full of (a) the principal ofCredit Agreement, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing the Guarantor agrees to pay such Guaranteed Obligations within ten Business Days after the filing giving by the Administrative Agent to the Guarantor and the Process Agent named in Section 15 hereof of written notice (a "Demand") demanding payment by the Guarantor, provided that in the event any petition in bankruptcy, or such payment is required to be made by 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-------- Guarantor hereunder, the Notes when and as Guarantor may cause such obligation or liability to be paid on its behalf by any corporation affiliated with it, including the same Obligors, provided that the Guarantor shall become due and payable (whether at stated maturity nevertheless be unconditionally obligated to pay such obligation or by required liability if such affiliate, including the Obligors, shall fail timely to pay such obligation or optional prepayment or by acceleration or otherwise), liability.
(b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence This Guaranty is an absolute, present and continuing guaranty a guarantee of payment and not of collectibility and is in no way conditional performance or contingent upon any attempt to collect from collection. The obligation of the Company or Guarantor hereunder shall be independent of the obligation of any other guarantor Guarantor (as such term is defined in the Credit Agreement), all such obligations being joint and several.
(c) The Guarantor shall be subrogated to all rights of the Notes or upon any other action, occurrence or circumstance whatsoever. In Banks against 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 Obligors in respect of any kind, in lawful money of amounts paid by the United States of America, Guarantor pursuant to the requirements for payment specified in provisions of this Guaranty; provided, however, that the Notes and the Note Purchase Agreement. Each default in payment Guarantor shall not -------- ------- be entitled to enforce or receive any payments arising out of, or based upon, such right of any of subrogation until all the Guaranteed Obligations shall give rise to a separate cause of action hereunder have been irrevocably and separate suits indefeasibly paid in full and no Guaranteed Obligations may be brought hereunder as each cause of action arises. Each Guarantor agrees that arise in 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase Agreementfuture.
Appears in 1 contract
Guaranty. Each Guarantor Lessor shall be liable for the complete and satisfactory payment and performance of each and every obligation of Lessee under the Key Money Agreement and as “Owner” under the Management Agreement (the “Guarantied Obligations”). Lessor hereby irrevocably absolutely, irrevocably, and unconditionally guarantees to each holder guaranties that the Guarantied Obligations which are monetary obligations shall be paid when due and punctual payable and that the Guarantied Obligations which are performance obligations shall be fully performed at the times and in the manner such performance is required by the Management Agreement and the Key Money Agreement. This guaranty is an absolute, irrevocable, and unconditional guaranty of payment and performance and the liability of Lessor hereunder shall be absolute and unconditional irrespective of: (i) any lack of validity, irregularity or enforceability of the Management Agreement, the Key Money Agreement or this Agreement; (ii) any change in full the time, manner, place or any other term or condition of (a) payments due under the principal Management Agreement, the Key Money Agreement or this Agreement, or any other amendment or waiver of, Make-Whole Amountor consent to, or any departure from the Management Agreement, the Key Money Agreement or this Agreement; (iii) any failure of Manager to enforce the provisions of the Management Agreement, the Key Money Agreement or this Agreement against Lessee; or (iv) any other circumstances which might otherwise constitute a defense available to, or a discharge of, any of the Guarantied Obligations (other than because, or to the extent, the same have been previously discharged in accordance with the terms of the Management Agreement and the Key Money Agreement). If all or any part of the Guarantied Obligations shall not have been paid when due and payable or performed at the time performance is required, Lessor (without first requiring the Manager to proceed against Lessee or any other party or any other security) shall pay or cause to be paid to Manager the amount thereof as is then due and payable and unpaid (including interest and other charges, if any, and interest on (including, without limitation, interest accruing after due thereon through the filing date of any petition payment in bankruptcy, or accordance with 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 or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and applicable provisions of the Notes Management Agreement and the Key Money Agreement) or perform or cause to be performed such obligations in accordance with the Management Agreement or the Note Purchase Agreement and Key Money Agreement, within ten (c10) Business Days after receipt of written notice from the performance of all other obligations Manager of the Company failure by Lessee to make such payment or render such performance; provided, however, that, notwithstanding the foregoing, Lessor shall have the right, in connection with a demand by Manager for payment by Lessor of Guaranteed Obligations, to assert any defenses or claim of Lessee under the Note Purchase Agreement, (all Management Agreement or the Key Money Agreement with respect to such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). If for any reason Lessor fails to perform or cause to be performed such obligations, Manager shall have the right to exercise any and all of the remedies available at law or in equity and Lessor hereby agrees to pay any and all reasonable expenses (including counsel fees and expenses) incurred by Manager in enforcing its rights under this Agreement. The guaranty contained in the preceding sentence this Agreement: (i) is an absolute, present and a continuing guaranty and shall remain in full force and effect until the indefeasible satisfaction and discharge in full of Lessee’s obligations under the Key Money Agreement and as “Owner” under the Management Agreement and Lessor’s and Lessee’s obligations under this Agreement, and (ii) shall continue to be effective or shall be reinstated, as the case may be, if at any time any payment under the Management Agreement, and not the Key Money Agreement or this Agreement becomes unrecoverable from Lessee by operation of collectibility and is in no way conditional law or contingent upon any attempt to collect from the Company or for any other guarantor reason or must otherwise be returned by Manager upon the insolvency, bankruptcy or reorganization of the Notes Lessor or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase AgreementLessee.
Appears in 1 contract
Sources: Owner Agreement (Apple Reit Six Inc)
Guaranty. Each (a) The Guarantor hereby unconditionally and irrevocably guarantees (as primary obligor and unconditionally guarantees to each holder the due and punctual not merely as surety) payment in full as provided in the Agreement of (a) all amounts payable by SDA under the principal ofAgreement, Make-Whole Amountas and when those amounts become payable by SDA pursuant to the terms and conditions contained in the Agreement. The Guarantor further unconditionally and irrevocably guarantees the performance by SDA, if anyas and when required pursuant to the terms and conditions of the Agreement, of all obligations of SDA under the Agreement. The Guaranty contained herein is made subject to all of the terms and conditions contained in the Agreement evidencing the obligations of SDA guaranteed hereby, and interest on (including, without limitation, interest accruing after the filing nothing contained herein shall be deemed to amend or modify any of such terms or conditions in 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 or by required or optional prepayment or by acceleration or otherwise), way.
(b) any other sums which may become due under the terms This is a continuing Guaranty and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing a guaranty of payment (not merely of collection) and not performance, and it shall remain in full force and effect until the later to occur of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor (i) termination of the Notes or upon 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 other actionway by the absence of any action to obtain those amounts from SDA. With respect to this Guaranty, occurrence or circumstance whatsoever. In the event that the Company shall fail so Guarantor waives all requirements as to pay any presentment, demand for payment, demand for performance, notice of such Guaranteed Obligations when due, each Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentmentdefault, protest or notice of any kindkind regarding SDA or the breach by SDA of its obligations under the Agreement.
(c) This Guaranty shall not be affected by the occurrence of any circumstance (other than complete, irrevocable payment) that might otherwise constitute a legal or equitable discharge or 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 petition for bankruptcy or any other insolvency proceeding, the 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 lawful money of full force and effect or shall be reinstated (as the United States of America, case may be) if at any time any payment by SDA made pursuant to the requirements for Agreement, in whole or in part, is rescinded or must otherwise be returned by the Beneficiary upon the insolvency, bankruptcy or reorganization of SDA or otherwise, all to the same extent as if that payment specified in had not been made.
(e) So long as any amount payable by SDA under the Notes Agreement is overdue and unpaid, the Note Purchase Agreement. Each default in payment Guarantor shall not (i) exercise any right of subrogation or indemnity, or similar right or remedy, against SDA or 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing its assets or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 property in respect of any amount paid by the Notes and Guarantor under this Guaranty or (ii) file a proof of claim in competition with the Note Purchase AgreementBeneficiary for any amount owing to the Guarantor by SDA on any account whatsoever in the event of the bankruptcy, insolvency or liquidation of SDA.
Appears in 1 contract
Guaranty. Each Guarantor hereby irrevocably Guarantor, jointly and severally with each other Guarantor, unconditionally guarantees guaranties all obligations of Borrower under the Note, whether now existing or hereafter incurred or created, joint or several, direct or indirect, absolute or contingent, due or to each holder the due and punctual payment in full become due, matured or unmatured, liquidated or unliquidated, arising by contract, operation of law or otherwise, including (a) the all principal of, Make-Whole Amount, if any, and interest (including any interest on (including, without limitation, interest accruing the Note) which accrues after the filing of any petition in bankruptcy, or the commencement of any insolvencycase, proceeding or other action relating to the bankruptcy, insolvency or reorganization of the Company or like proceedingwould have accrued but for the application of provisions of the Bankruptcy Reform Act of 1978 (11 U.S.C. Sections 101-1330), whether as amended or not a claim for post-filing or post-petition interest is allowed in such proceeding)supplemented from time to time, and any other amounts due undersuccessor statute, the Notes when and as the same shall become due any and payable all rules issued or promulgated in connection therewith (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise“Bankruptcy Code”), ; (b) all other amounts (including any other sums which may become due fees or expenses) payable by Borrower under the terms and provisions of the Notes Note or the Note Purchase Loan Agreement and (c) the performance any renewals, refinancings or extensions of all other obligations any of the Company under the Note Purchase Agreementforegoing (collectively, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”), when due and at the place specified therefor. The This guaranty in the preceding sentence by each Guarantor is an absolute, present unconditional and continuing guaranty of the full and punctual payment and performance by Borrower of the Obligations and not of their collectibility only and is in no way conditional or contingent conditioned upon any requirement that SNH first attempt to collect any of the Obligations from the Company Borrower or any other guarantor Guarantor or resort to any security or other means of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 obtaining payment of any of the Guaranteed Obligations which SNH now has or may acquire after the date hereof, or upon any other contingency whatsoever, and the obligations of each Guarantor hereunder shall give rise not be subject to a separate any counterclaim, setoff, recoupment or defense based upon any claim such Guarantor may have against SNH, Borrower or any other Guarantor. Upon any default by Borrower in the full and punctual payment and performance of the Obligations or any part thereof, the Guarantors will promptly pay or cause to be paid to SNH, the amount of action such Obligations which is then due and payable. Payments by the Guarantors hereunder and separate suits may be brought hereunder as each cause required to be made on any number 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase Agreementoccasions.
Appears in 1 contract
Guaranty. Each The Guarantor, as the indirect ultimate parent of each Seller, acknowledges and agrees that it derives benefit from the purchase of Receivables from each Seller by the Purchaser pursuant to this Agreement. The Guarantor hereby unconditionally and irrevocably and unconditionally guarantees to the Purchaser, as primary obligor and not merely as surety, the complete and timely payment and performance on demand (after notice thereof by the Purchaser) of all obligations of each holder the due and punctual payment in full of (a) the principal ofSeller arising under or pursuant to this Agreement, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing obligations of each Seller to make any payment to the Purchaser required hereby, regardless of the nature of the transactions contemplated hereby, the obligations set forth in Section 5.2 (Servicing Covenants), Section 11.2 (Repurchase), Section 12.1 (Taxes), Section 13.1 (Indemnity) and Section 13.2 (Expenses); provided, however, that the Guarantor shall have no obligations hereunder with respect to any non-payment of any petition in bankruptcy, Purchased Receivable resulting solely from an Insolvency Event of the applicable Approved Obligor 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 or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions financial inability of the Notes or Obligor to pay such Purchased Receivable on the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”)applicable Invoice Due Date. The This guaranty in the preceding sentence is an irrevocable, absolute, present and continuing guaranty of prompt payment and not of collectibility performance, and is in no way conditional or contingent upon any attempt to collect from the Company or bring action against any other guarantor of the Notes Seller, or perfect or enforce any security or upon any other action, occurrence or circumstance whatsoever. In The liability of the event that Guarantor hereunder is independent of and not in consideration of or contingent upon the Company liability of any other person under this or any similar instrument and the release of, or cancellation by, any party to this or a similar instrument shall fail so not act to pay release or otherwise affect the liability of the Guarantor hereunder. It shall not be necessary for the Purchaser (and the Guarantor hereby waives any rights which the Guarantor may have to require the Purchaser), in order to enforce the obligations of such Guaranteed Obligations when duethe Guarantor hereunder, each Guarantor agrees first to pay (i) institute suit or exhaust its remedies against any Seller or any other person, (ii) enforce the same when due Purchaser’s rights against any collateral which shall ever have been given to secure performance under this Agreement, (iii) exhaust any remedies available to the holders entitled theretoPurchaser against any collateral which shall ever have been given to secure performance under this Agreement, without demand, presentment, protest or notice (iv) resort to any other means of obtaining payment of the obligations of any kind, in lawful money Seller hereunder. The liability of the United States Guarantor hereunder shall be absolute and unconditional irrespective of: (i) any lack of Americavalidity or enforceability of any obligation of any Seller hereunder or of this Agreement or any other Purchase Document as against any Seller; (ii) any amendment or waiver of this Agreement or any other Purchase Document executed by any Seller; or (iii) any challenge to, pursuant or lack of validity of, any Seller’s ownership interest (immediately prior to the requirements for payment specified each purchase hereunder) in the 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase AgreementPurchased Receivables.
Appears in 1 contract
Sources: Master Accounts Receivable Purchase Agreement (Zebra Technologies Corp)
Guaranty. Each (a) O▇▇▇▇ Corning, a Delaware corporation will initially be entering into the Transaction referred to below and will be succeeded, except to the extent otherwise provided in the Confirmation related to the Transaction, by the Asbestos Personal Injury Trust (as defined in O▇▇▇▇ Corning’s Plan of Reorganization) and each such entity shall, for purposes of this Guaranty only, be the “Counterparty” under that Transaction (and thus the Beneficiary of this Guaranty, with all rights and privileges to enforce the same). To induce the Beneficiary to enter into a Transaction with Bear, S▇▇▇▇▇▇ International Limited (“BSE”) evidenced by the Confirmation dated the date hereof and the ISDA Master Agreement incorporated therein by reference each between O▇▇▇▇ Corning and BSE (with O▇▇▇▇ Corning to be succeeded by the Asbestos Personal Injury Trust, except to the extent otherwise provided in the Confirmation related to the Transaction) (“Master Agreement” and together with such Confirmation and any other Confirmation forming a part of that ISDA Master Agreement, the “Agreement”; terms capitalized but not otherwise defined herein being used herein as therein defined), the Guarantor hereby irrevocably and unconditionally guarantees to each holder the Beneficiary, its successors and permitted assigns, the prompt and complete payment and performance by BSE, on demand, of any amount due and punctual payable to the Beneficiary from time to time under the Agreement, subject to any applicable grace period thereunder (the “Obligations”).
(b) The Guarantor hereby waives acceptance (or notice of acceptance) of this Guaranty, diligence, promptness, presentment, demand on BSE for payment in full or performance, protest of (a) the principal of, Make-Whole Amount, if any, nonpayment and interest on (including, without limitation, interest accruing after the filing all notices of any petition in bankruptcykind. In addition, the Guarantor’s obligations hereunder shall not be affected by the existence, validity, enforceability, perfection, or the commencement extent of any insolvencycollateral therefor. The Beneficiary shall not be obligated to proceed against BSE before claiming under this Guaranty nor to file any claim relating to the Obligations in the event that BSE becomes subject to a bankruptcy, reorganization or like similar 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 or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions failure of the Notes or Beneficiary so to file shall not affect the Note Purchase Agreement and (c) the performance of all other Guarantor’s obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”)hereunder. The guaranty in the preceding sentence is an absolute, present and continuing Guarantor agrees that its obligations under this Guaranty constitute a guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase Agreementcollection.
Appears in 1 contract
Sources: Letter Agreement (Owens Corning/Fibreboard Asbestos Personal Injury Trust)
Guaranty. Each Subsidiary Guarantor hereby irrevocably irrevocably, unconditionally and unconditionally jointly and severally with the other Subsidiary Guarantors guarantees to each holder holder, the due and punctual payment in full of (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), and any other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), ) and (b) any other sums which may become due under the terms and provisions of the Notes or Notes, the Note Purchase Agreement and (c) the performance of all or any other obligations of the Company under the Note Purchase Agreement, instrument referred to therein (all such obligations described in clauses (a), (b) and (cb) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes (including, without limitation, any other 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 such Guaranteed Obligations when dueObligations, each Subsidiary 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 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 Purchase Agreement may (but need not) make reference to this Guaranty Agreement. Each Subsidiary Guarantor agrees to pay all reasonable and documented costs to indemnify and expenses save each holder harmless from and against any damage, loss, cost or expense (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken fees) which such holder may incur or be subject to as a wholeconsequence, anddirect or indirect, if reasonably required of (x) any breach by such Subsidiary Guarantor, by any other Subsidiary Guarantor or by the Required HoldersCompany of any warranty, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialtycovenant, for term or condition in, or the holdersoccurrence of any default under, taken this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a wholeresult of any such breach or default, (y) incurred by any legal action commenced to challenge the Purchasers validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and each other holder of a Note in connection with (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each Subsidiary Guarantor hereby acknowledges and agrees that each such Subsidiary Guarantor’s liability hereunder is joint and several with each the other Guarantor Subsidiary Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note Purchase Agreement.
Appears in 1 contract
Guaranty. Each Guarantor hereby irrevocably irrevocably, unconditionally and unconditionally jointly and severally with the other Guarantors guarantees to each holder holder, the due and punctual payment in full of (a) the principal of, Make-Whole 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 post‑filing or post-petition 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 or by required or optional prepayment or by acceleration or otherwise), ) and (b) any other sums which may become due under the terms and provisions of the Notes or Notes, the Note Purchase Agreement and (cor any other instrument referred to therein) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (cb) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility collectability and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when dueObligations, 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 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 all reasonable and documented costs to indemnify and expenses save each holder harmless from and against any damage, loss, cost or expense (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken fees) which such holder may incur or be subject to as a wholeconsequence, anddirect or indirect, if reasonably required of (x) any breach by such Guarantor, by any other Guarantor or by the Required HoldersCompany of any warranty, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialtycovenant, for term or condition in, or the holdersoccurrence of any default under, taken this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a wholeresult of any such breach or default, (y) incurred by any legal action commenced to challenge the Purchasers validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and each other holder of a Note in connection with (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each such Guarantor’s liability hereunder is joint and several with each the other Guarantor Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note Purchase Agreement.
Appears in 1 contract
Guaranty. Each Guarantor (a) As an inducement for Purchaser to enter into this Agreement and for other good and valuable consideration, the receipt and legal sufficiency of which are hereby acknowledged, NorthStar Healthcare Income Operating Partnership LP, a Delaware limited partnership (“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 each holder the due and punctual payment Purchaser (as set forth in full of (athis Section 38) the principal ofprompt payment and performance by Seller of its obligations to Purchaser under Section 10(h) of this Agreement (collectively, 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 or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”)) as and when the same shall be due and payable in accordance with the terms 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 (the preceding sentence “Guaranty”) is an irrevocable, absolute, present and continuing guaranty of prompt payment and performance and not a guaranty of collectibility collection. The obligations of Guarantor under this Guaranty shall be primary, irrevocable, direct and is in no way immediate and not conditional or contingent upon pursuit by Purchaser of any attempt remedies it may have against Seller under this Agreement or any remedies it might have against any other person. This Guaranty may not be revoked by Guarantor and shall continue to collect be effective with respect to any Guaranteed Obligations arising or created after any attempted revocation by Guarantor. The fact that at any time or from time to time the Company Guaranteed Obligations may be increased or reduced or otherwise modified in any manner or to any extent shall not release, diminish or discharge the 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 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 any other guarantor notice whatsoever, all such notices being hereby waived by Guarantor, pay (within ten (10) business days of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 the amount due on the Guaranteed Obligations to Purchaser.
(b) For a period of [***] following the requirements for payment specified Closing Date, Guarantor shall maintain (i) a net worth of not less than [***] (the “Net Worth Threshold”) and (ii) Liquid Assets of not less than [***] (the “Liquid Assets Threshold”). As used here in the Notes and the Note Purchase Agreement. Each default in payment of term “Liquid Assets” shall mean any of the Guaranteed Obligations shall give rise following, but only to a separate cause the extent owned by Guarantor, free 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holderssecurity interests, taken as a wholeliens, andpledges, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing charges or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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(sencumbrance: (i) who may guarantee the obligations and Indebtedness under and cash in respect United States dollars, (ii) certificates of the Notes and the Note Purchase Agreementdeposit (with a maturity of two years or less) issued by, or savings account with, any United States bank, or (c) marketable securities listed on a national or international exchange, marked to market.
Appears in 1 contract
Sources: Portfolio Acquisition Agreement (NorthStar Healthcare Income, Inc.)
Guaranty. Each Guarantor MRCC and Bedminster (collectively, the "Guarantors"), on an absolute, unconditional and continuing basis, each hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) the principal of, Make-Whole Amount, if anyLGAF, and interest on (its successors and assigns, and participants and guarantors, that CAHC shall timely, fully and completely pay, perform and discharge all Put Option Obligations of CAHC under this Agreement, including, without limitation, interest accruing after 1) all Put Option Obligations that relate to or arise from the filing Puts and/or the Bonds, 2) all costs, reasonable attorneys' fees and other expenses paid or incurred by LGAF to enforce the terms of or collect any petition in bankruptcysums under this Agreement upon an Event of Default by CAHC, and/or 3) all renewals and extensions thereof (the "Guaranty"). Pursuant thereto, MRCC and Bedminster absolutely, unconditionally and continuously agree, promise and covenant that, upon an Event of Default, MRCC and Bedminster, upon demand by LGAF and without further notice of dishonor and without any notice with respect to any matter or occurrence having been given to CAHC previous to any such demand, shall immediately pay, perform and/or discharge completely and fully any and all such Put Option Obligations. Each of MRCC, Bedminster and LGAF hereby confirms that it is the intention of all such persons that this Guaranty and the obligations of each Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of Title 11, U.S. Code, or any similar federal or state law for the commencement relief of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceedingdebtors ("Bankruptcy Law"), and any other amounts due underthe Uniform Fraudulent Conveyance Act, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company Uniform Fraudulent Transfer Act or any other guarantor of the Notes similar federal or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when due, each Guarantor agrees to pay the same when due state law 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 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 extent applicable to this Guaranty Agreementand the obligations of each Guarantor hereunder. Each To effectuate the foregoing intention, LGAF, MRCC and Bedminster hereby irrevocably agree that the obligations of each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and under this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each Guarantor’s liability hereunder is joint and several with each other Guarantor and at any other Person(s) who may guarantee time shall be limited to the maximum amount as will result in the obligations and Indebtedness of such Guarantor under and in respect of the Notes and the Note Purchase Agreementthis Guaranty not constituting a fraudulent transfer or conveyance.
Appears in 1 contract
Sources: Put Option Agreement (Compost America Holding Co Inc)
Guaranty. Each Guarantor (a) To induce the Purchasers to accept the Notes, Topco hereby absolutely, unconditionally and irrevocably guarantees, as primary obligor and unconditionally guarantees to each holder not merely as surety, the due full and punctual payment when due, whether at stated maturity or earlier, by reason of acceleration, mandatory prepayment or otherwise, in full accordance herewith, the Notes and any other Purchase Document, all of (a) the principal ofObligations of the Loan Parties, Make-Whole Amountwhether or not from time to time reduced or extinguished or hereafter increased or incurred, if anywhether or not recovery may be or hereafter may become barred by any statute of limitations, whether or not enforceable as against the Loan Parties, whether now or hereafter existing, and interest on (includingwhether due or to become due, without limitationincluding principal, interest (including interest at the contract rate applicable upon default accrued or accruing after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceedingproceeding under the Bankruptcy Code, whether or not a claim for post-filing or post-petition such interest is an allowed claim in such proceeding), fees and any other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions costs of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”)collection. The guaranty in the preceding sentence is an absolute, present and continuing This Guaranty constitutes a guaranty of payment and not of collectibility collection.
(b) Topco further agrees that, if (i) any payment made by the Loan Parties and applied to the Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, or (ii) the proceeds of Collateral (as defined in no way conditional the security Agreement) are required to be returned by Agent or contingent upon any attempt Purchaser to collect from the Company any Loan Party, its estate, trustee, receiver or any other guarantor of the Notes party, including Topco, under any bankruptcy law, equitable cause or upon any other actionrequirement of any applicable Law, occurrence or circumstance whatsoever. In then, to the event that the Company shall fail so to pay any extent of such Guaranteed Obligations when duepayment or repayment, each Guarantor agrees Topco’s liability hereunder (and any Lien or other Collateral securing such liability) shall be and remain in full force and effect, as fully as if such payment had never been made. If, prior to 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 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 foregoing, this Guaranty Agreement. Each Guarantor agrees to pay all reasonable shall have been cancelled or surrendered (and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each any Lien or other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each GuarantorCollateral securing Topco’s liability hereunder is joint shall have been released or terminated by virtue of such cancellation or surrender), this Guaranty (and several with each such Lien or other Guarantor Collateral) shall be reinstated in full force and any other Person(s) who may guarantee effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations and Indebtedness under and of Topco in respect of the Notes and the Note Purchase Agreementamount of such payment (or any Lien or other Collateral securing such obligation).
Appears in 1 contract
Sources: Note and Equity Purchase Agreement (Mirion Technologies, Inc.)
Guaranty. (a) Each Guarantor Borrower hereby irrevocably unconditionally and unconditionally irrevocably, guarantees to each holder the Lender:
(i) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of (a) the principal ofObligations, Make-Whole Amountincluding unpaid and accrued interest thereon, 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 each case when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise)payable, (b) any other sums which may become due under all according to the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and the other Financing Documents;
(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 any time be due and payable in accordance with this Guaranty Agreement, the Notes or any of the other Financing Documents;
(iii) the due and punctual performance by the other Borrowers of all of the other terms, covenants and conditions contained in the Financing Documents; and
(iv) all the other Obligations of the other Borrowers.
(b) The obligations and liabilities of each Borrower as a guarantor under this Section 2.4.8 shall be absolute and unconditional and joint and several, irrespective of the genuineness, validity, priority, regularity or enforceability of this Agreement, any of the Notes or any of the Financing Documents or any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Guarantor hereby acknowledges and Borrower in its capacity as a guarantor expressly agrees that each Guarantor’s liability hereunder is 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 with each other Guarantor obligations and liabilities of such Borrower as a guarantor hereunder:
(i) waive compliance with, or any defaults under, or grant any other Person(sindulgences under or with respect to any of the Financing Documents;
(ii) who may guarantee modify, amend, change or terminate any provisions of any of the obligations and Indebtedness under and 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 respect 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 any collateral for the Loans 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 Commitments, the Obligations, the Notes, any of the other Financing Documents or any interest therein, all as and to the Note Purchase extent permitted by the provisions of this Agreement.; (ix) deal in all respects with the other Borrowers as if this Section 2.4.8 were not in effect;
Appears in 1 contract
Sources: Financing Agreement (Polk Audio Inc)
Guaranty. Each If after the Effective Date Great American and/or any Affiliate or Subsidiary thereof obtains a Parent Working Capital Facility, each Guarantor hereby irrevocably absolutely and unconditionally guarantees unconditionally, jointly and severally, as a primary guarantor and not merely as a surety guarantees, agrees to each holder be liable for, the due and punctual payment in full of (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), and any other amounts due under, the Notes when and as the same shall become due and payable performance (whether at the stated maturity or maturity, by required or optional prepayment or prepayment, by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions by each of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations Borrowers of the Company under the Note Purchase Agreement, Guaranteed Amount (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed ObligationsPWCF Guaranty Obligation”). The guaranty However, at all times during which such Parent Working Capital Facility is not in place, either because it has not yet been obtained or because it has expired or is terminated for any reason, each Guarantor absolutely and unconditionally, jointly and severally, as a primary guarantor and not merely as a surety guarantees, agrees to be liable for, the preceding sentence due and punctual payment and performance (whether at the stated maturity, by required prepayment, by acceleration or otherwise) by each of the Borrowers of the Guaranteed Amount on or after the occurrence of the Key Date (the “Non-PWCF Guaranty Obligation”). Notwithstanding anything to the contrary set forth in Section 2, and for the sake of clarity, if, after Great American and/or any Affiliate or Subsidiary thereof obtains a Parent Working Capital Facility, such Parent Working Capital Facility expires or is an absoluteterminated for any reason, present (A) any then-existing PWCF Guaranty Obligations will remain in effect and continuing shall not become Non-PWCF Guaranty Obligations as a result of such Expiration or termination of the Parent Working Capital Facility, but (B) any new obligations which arise under the Guaranty after such expiration or termination will be Non-PWCF Guaranty Obligations. Each Guarantor further agrees that the Obligations and other Liabilities may be extended or reviewed, in whole or in part, without notice to or further assent from it, and that it will remain bound upon this Guaranty notwithstanding any extension or renewal of any such obligations or other Liabilities. This is a guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase Agreementcollection.
Appears in 1 contract
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) Each of the principal ofGuarantors hereby, Make-Whole Amountjointly and severally, if anyunconditionally and irrevocably, guarantees to the Agent and the Banks and their respective successors, endorsees, transferees and assigns, the prompt and complete payment by the Company when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations, and interest on each Guarantor further agrees to pay any and all expenses (including, without limitation, interest accruing after all fees and disbursements of counsel) which may be paid or incurred by the filing of Agent or any petition Bank in bankruptcyenforcing, or obtaining advice of counsel in respect of or collecting, any or all of the Obligations and/or enforcing any rights with respect to, or collecting against, such Guarantor under this Guaranty; PROVIDED, HOWEVER, that, anything herein or in any other Credit Document to the contrary notwithstanding, the maximum liability of each Guarantor hereunder and under the other Credit Documents shall in no event exceed such Guarantor's Maximum Guaranteed Amount as determined at the earlier of the date of 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 or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due case under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 Title 11 of the United States of America, pursuant to the requirements for payment specified Code in the Notes which such Guarantor is a debtor and the Note Purchase Agreement. Each default in payment of any of the Guaranteed Obligations shall give rise to a separate cause of action date enforcement hereunder and separate suits may be brought hereunder as each cause of action arises. is sought.
(b) Each Guarantor agrees that the Notes issued in connection with Obligations may at any time and from time to time exceed the Note Purchase Agreement may (but need not) make reference to Maximum Guaranteed Amount of such Guarantor or of all of the Guarantors without impairing this Guaranty Agreement. or affecting the rights and remedies of the Agent and the Banks hereunder.
(c) No payment or payments made by the Company, any of the Guarantors, any other guarantor or any other Person or received or collected by the Agent or any Bank from the Company, any of the Guarantors, any other guarantor or any other Person
(d) Each Guarantor agrees that whenever, at any time, or from time to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees time, it shall make any payment to the Agent or any Bank on account of one special counsel for its liability hereunder, it will notify the holders, taken as a whole, and, if reasonably required by the Required Holders, one local counsel Agent in each applicable jurisdiction and/or one specialty counsel in each applicable specialty, for the holders, taken as a whole) incurred by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and writing that such payment is made under 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 Notes and the Note Purchase Agreementfor such purpose.
Appears in 1 contract
Sources: Credit Agreement (Haggar Corp)
Guaranty. Each Guarantor Flightlease AG and SR Technics Group hereby irrevocably and unconditionally guarantees guarantee to each holder the due and punctual payment in full of ▇▇▇▇▇▇ Lease Finance Corporation (a) the principal of"WLFC"), Make-Whole Amount▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, if anyVI, and interest on (includingCFW Partners, without limitationLP., interest accruing after Investor's performance of Investor's obligations under this Agreement. The liability of each of the filing undersigned hereunder is independent of any petition and not in bankruptcy, consideration of or contingent upon the commencement liability of any insolvency, reorganization Investor and a separate action or like proceedingactions may be brought and prosecuted against each of the undersigned, whether or not any action is brought or prosecuted against Investor or Investor is joined in any such action or actions. Each of the undersigned's obligations hereunder will be construed as a claim for post-filing continuing, absolute and unconditional guaranty of payment (and not merely of collection) and performance of all of Investor's obligations without regard to: (i) any defense (other than payment), setoff or post-petition interest is allowed counterclaim that may at any time be available to Investor against, and any right of setoff at any time held by, WLFC; or (ii) any other circumstances whatsoever (with or without notice to or knowledge of the undersigned), whether or not similar to any of the foregoing, that constitutes, or might be construed to constitute, an equitable or legal discharge of Investor, in bankruptcy or in any other instance. The undersigned waives: (i) the right to require WLFC to proceed against Investor or to pursue any other remedy in WLFC's power whatsoever; (ii) the benefit of any statute of limitations affecting Investor's liability hereunder; (iii) any requirement of the marshalling or any other principle of election of remedies and all rights and defenses arising out of an election of remedies by WLFC; (iv) any right to assert against WLFC any defense (legal or equitable), setoff, counterclaim and other right that the undersigned may now or any time hereafter have against the undersigned; (v) promptness, diligence, presentment, demand of payment, protest, notice of dishonor or nonpayment of any such proceeding)liabilities, suit or taking of other action by WLFC against, and any other amounts due undernotice to, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”)undersigned. The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 undersigned 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 all reasonable it will be bound by each and documented costs every ruling, order and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required judgment obtained by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 WLFC against Investor in respect of its obligations under this Agreement, whether or not the Notes undersigned is a party to, or has received notice of, the action or proceeding in which such ruling, order or judgment is issued or rendered. Without limiting the foregoing, the obligations under this guaranty will not be discharged or otherwise affected by any bankruptcy, reorganization or similar proceeding commenced by or against Investor. FLIGHTLEASE ▇▇ ▇▇ TECHNICS GROUP By: /S/ HANS ▇▇▇▇ ▇▇▇▇▇▇▇▇ By: /S/ ▇▇▇▇ ▇▇▇▇▇▇ BEYELER -------------------------------- ------------------------------------- Hans ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ Beyeler President and the Note Purchase Agreement.CEO President and CEO By:/S/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ By: /S/ GEORG RADON -------------------------------- ------------------------------------- ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Georg Radon Head of Business Development Vice President and CFO SCHEDULE 1.1 Definitions
Appears in 1 contract
Sources: Stockholders' Agreement (Willis Lease Finance Corp)
Guaranty. Each Guarantor In order to induce the Lenders to extend credit hereunder, Parent hereby irrevocably and unconditionally guarantees the Obligations. Parent agrees that the Guaranteed Parties may make a claim under Parent's guarantee immediately upon the occurrence of an Event of Default or at any time thereafter, but (other than in the case of an Event of Default in respect of the Borrower under Section 6.01(e) (except clause (i)(A) thereof)) following the making of a demand on the Borrower for payment or performance, as applicable, without any obligation to each holder first seek any other remedy or take any other action against the Borrower. Parent further agrees that the due and punctual payment of the Obligations may be extended or renewed, in full whole or in part, without notice to or further assent from it, and that it will remain bound upon its Guaranty hereunder notwithstanding any such extension or renewal of (a) any Obligation. Each and every default in payment of the principal of, Make-Whole Amountof and premium, if any, and or 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 or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 payment of any of the Guaranteed Obligations Obligation shall give rise to a separate cause of action hereunder hereunder, and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that Parent waives presentment to, demand of payment from and protest to the Notes issued in connection with Borrower of any of the Note Purchase Agreement may Obligations, and also waives notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of Parent hereunder shall not be affected by (but need nota) make reference the failure of any Guaranteed Party to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing assert any claim or defending (demand or determining whether or how to enforce any right or defend) remedy against the Borrower or Parent under the provisions of the Note Purchase this Agreement, any other Financing Document or otherwise; (b) any extension or renewal of any of the Notes and Obligations; (c) any rescission, waiver, amendment or modification of, or release from, any of the terms or provisions of this Guaranty AgreementAgreement or any other Financing Document or agreement; (d) the failure or delay of any Guaranteed Party to exercise any right or remedy against any other guarantor of the Obligations; (e) the failure of any Guaranteed Party to assert any claim or demand or to enforce any remedy under any Financing Document, any guaranty or any other agreement or instrument; (f) any default, failure or delay, wilful or otherwise, in the performance of the Obligations; or (h) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of Parent or otherwise operate as a discharge of Parent as a matter of law or equity or which would impair or eliminate any right of Parent to subrogation. Each Guarantor hereby acknowledges and Parent further agrees that each Guarantor’s liability its agreement hereunder is joint constitutes a promise of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Obligations or operated as a discharge thereof) and several with each other Guarantor not merely of collection, and waives any right to require that any resort be had by any Guaranteed Party to any balance of any deposit account or credit on the books of any Guaranteed Party in favor of any Borrower or any other Person(sPerson. The obligations of Parent hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or setoff, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of the Obligations, any impossibility in the performance of the Obligations or otherwise. 61 Parent further agrees that its obligations hereunder shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Obligation is rescinded or must otherwise be restored by any Guaranteed Party upon the bankruptcy or reorganization of Borrower or otherwise. In furtherance of the foregoing and not in limitation of any other right which any Guaranteed Party may have at law or in equity against Parent by virtue hereof, upon the failure of the Borrower to pay any Obligation when and as the same shall become due, whether at maturity, by acceleration, after notice of prepayment or otherwise, Parent hereby promises to and will, upon receipt of written demand by the Administrative Agent, forthwith pay, or cause to be paid, to the Administrative Agent for distribution to the Guaranteed Parties in cash an amount equal to the sum of (i) who may guarantee the obligations unpaid principal amount of such Obligations then due, (ii) accrued and Indebtedness under unpaid interest and fees on such Obligations and (iii) all other monetary Obligations then due. Parent further agrees that if payment in respect of any Obligation shall be due in a currency other than Cdn. Dollars and/or at a place of payment other than Toronto, Ontario and if, by reason of any Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance or similar event, payment of such Obligation in such currency or at such place of payment shall be impossible or, in the Notes judgment of any Guaranteed Party, not consistent with the protection of its rights or interests, then, at the election of such Guaranteed Party, Parent shall make payment of such Obligation in Cdn. Dollars (based upon the applicable Exchange Rate in effect on the date of payment) and/or in Toronto, Ontario, and shall indemnify such Guaranteed Party against ▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇penses that it shall sustain as a result of such alternative payment. Upon payment in full by Parent of any Obligation, each Lender shall, in a reasonable manner, assign the Note Purchase Agreementamount of such Obligation owed to it and so paid to Parent, such assignment to be pro tanto to the extent to which the Obligation in question was discharged by Parent, or make such disposition thereof as Parent shall direct (all without recourse to any Guaranteed Party and without any representation or warranty by any Guaranteed Party). Upon payment by Parent of any sums as provided above, all rights of Parent against the Borrower arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinated and junior in right of payment to the prior indefeasible payment in full of all the Obligations owed by the Borrower to the Guaranteed Parties. Nothing shall discharge or satisfy the liability of Parent hereunder except the full performance and payment of the Obligations. Each reference herein to any Guaranteed Party shall be deemed to include their or its successors and assigns, in whose favor the provisions of this Guaranty shall also inure.
Appears in 1 contract
Sources: Canadian Credit Agreement (Burlington Resources Inc)
Guaranty. Each The Guarantor hereby unconditionally and irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) the principal of, Make-Whole Amount, if anyInvestor, and interest on (includingits respective successors, without limitationindorsees, interest accruing after transferees and assigns, the filing prompt and complete payment and performance by the Borrower when due of any petition in bankruptcyall its obligations, or liabilities and indebtedness under the commencement of any insolvencyNotes, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), the Securities Purchase Agreement and any other amounts due underagreement of the Borrower referred to in the Securities Purchase Agreement (the Notes, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Securities Purchase Agreement, (all any other such obligations described agreement and the security agreement entered into by the Guarantor in clauses (afavor of the Investor pursuant to the Securities Purchase Agreement are herein collectively referred to as the “Investment Documents”), (b) and (c) above are herein called the “Guaranteed Obligations”)whether by lapse of time, by acceleration of maturity or otherwise. The guaranty in Guarantor hereby unconditionally and irrevocably covenants and agrees that the preceding sentence is an absoluteBorrower and the Guarantor, present jointly and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from severally, are liable for the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoeverobligations guaranteed hereunder as primary obligors. In the event that any Investment Document shall be terminated as a result of the Company shall fail so to pay 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 Guaranteed Obligations Investment Document had not been so rejected.
(a) If all or any part of the payment or obligations guaranteed hereunder shall not be punctually paid or performed when due, each Guarantor agrees to pay the same when due to the holders entitled thereto, without whether at demand, maturity, acceleration or otherwise, the Guarantor shall, immediately upon demand by an Investor, and without presentment, protest or protest, notice of dishonor, notice of non-payment, notice of intention to accelerate the maturity, notice of acceleration of the maturity, or any kindother notice whatsoever, pay such due amount in lawful money of the United States of America, pursuant 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 obligations guaranteed hereunder, and may be made from to from with respect to the requirements for payment specified same or different items of obligations guaranteed hereunder. Such demand shall be deemed made, given and received in accordance with the Notes notice 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 waiver provisions hereof.
(but need notb) make reference to this Guaranty Agreement. Each The Guarantor agrees to pay all reasonable and documented costs and costs, expenses (including reasonable and documented including, without limitation, attorneys’ fees and disbursements) and damages incurred in connection with the enforcement of one special counsel for the holdersGuaranty to the extent that such costs, taken expenses and damages are not paid by the Borrower pursuant to the respective Investment Documents.
(c) The Guarantor further agrees that if any payment made by the Borrower or the Guarantor to the Investor on this Guaranty is rescinded, recovered from or repaid by the Investor, in whole or in part, in any bankruptcy, insolvency or similar proceeding instituted by or against the Borrower or Guarantor, this Guaranty shall continue to be fully effective to the same extent as a wholethough the payment so recovered or repaid had never originally been made on the Guaranty of, and, if reasonably required without giving effect to, any discharge or release of the Guarantor’s obligations hereunder granted by the Required Holders, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialty, for Investor after the holders, taken as a whole) incurred by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase Agreementdate hereof.
Appears in 1 contract
Sources: Guaranty (Versadial, Inc.)
Guaranty. Each (a) The Parent Guarantor hereby absolutely, unconditionally, and irrevocably and unconditionally guarantees to each holder of the due and punctual payment in full of holders:
(ai) the full and prompt payment of the principal of, of and interest on the Notes and 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 proceedingwhen due, whether at stated maturity, upon acceleration or not a claim for post-filing or post-petition interest is allowed in such proceeding)otherwise, and any other amounts due underat all times thereafter, and the Notes when and as the same shall prompt payment of all sums that may now be or may hereafter become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due owing under the terms 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, complete, and provisions punctual observance, performance, and satisfaction of all of the Notes or the Note Purchase Agreement obligations, duties, covenants, and (c) the performance of all other obligations agreements of the Company under the Note Purchase this Agreement. All amounts due, (all such debts, liabilities, and payment obligations described in clauses subparagraph (a), i) of this Section 23.1(a) are referred to herein as the “Guaranteed Note Indebtedness.” All obligations described in subparagraph (iii) of this Section 23.1(a) are referred to herein as the “Parent Guaranty Obligations.”
(b) In the event of any default by the Company in making payment of the Guaranteed Note Indebtedness, or in performance of the Parent Guaranty Obligations, as aforesaid, in each case beyond the expiration of any applicable grace period, the Parent Guarantor agrees, on demand by the holders, to pay all the Guaranteed Note Indebtedness and to perform all the Parent Guaranty Obligations as are then or thereafter become due and owing or are to be performed under the terms of the Notes and this Agreement.
(c) above are herein called 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 holders to inform the Parent Guarantor of any fact that the holders may now or hereafter know about the Company, the Notes, this Agreement, or the 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 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 Guaranty Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty (v) any and all right to cause a marshalling of payment and not assets of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of action by any court or governmental body with respect thereto, or to cause the Notes or upon holders to proceed against any other action, occurrence or circumstance whatsoever. 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 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 security given another holder in connection with the Guaranteed Note Purchase Agreement may (but need not) make reference Indebtedness or the Parent Guaranty Obligations. The holders shall have no obligation to this Guaranty Agreementdisclose or discuss with the Parent Guarantor, such holder’s assessment of the financial condition of the Company. Each The Parent Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees acknowledges that no representations of one special counsel for the holders, taken as a whole, and, if reasonably required any kind whatsoever have been made by the Required Holdersholders to the Parent Guarantor, one local counsel except as expressly set forth in each applicable jurisdiction and/or one specialty counsel Section 6 herein.
(d) The Parent Guarantor further agrees that its liability as guarantor shall in each applicable specialtyno 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 holdersCompany, taken as or by any change or modification in a whole) incurred Note, this Agreement, any Subsidiary Guaranty, or by the Purchasers and each other 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 Note in connection with enforcing holder may lawfully have elected to apply such payments to any part or defending (or determining whether or how to enforce or defend) the provisions all of the Guaranteed Note Purchase 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 Notes, any Subsidiary Guaranty and this Parent Guaranty Agreementhave been performed, notwithstanding any act or thing that might otherwise operate as a legal or equitable discharge of a surety. Each The Parent Guarantor hereby acknowledges further understands and agrees that each the 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 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 Agreementhereunder.
Appears in 1 contract
Guaranty. Each (a) The Parent Guarantor hereby absolutely, unconditionally, and irrevocably and unconditionally guarantees to each holder of the due and punctual payment in full of holders:
(ai) the full and prompt payment of the principal of, of and interest on the Notes and 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 proceedingwhen due, whether at stated maturity, upon acceleration or not a claim for post-filing or post-petition interest is allowed in such proceeding)otherwise, and any other amounts due underat all times thereafter, and the Notes when and as the same shall prompt payment of all sums that may now be or may hereafter become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due owing under the terms 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, complete, and provisions punctual observance, performance, and satisfaction of all of the Notes or the Note Purchase Agreement obligations, duties, covenants, and (c) the performance of all other obligations agreements of the Company under the Note Purchase this Agreement. All amounts due, (all such debts, liabilities, and payment obligations described in clauses subparagraph (a), i) of this Section 23.1(a) are referred to herein as the “Guaranteed Note Indebtedness.” All obligations described in subparagraph (iii) of this Section 23.1(a) are referred to herein as the “Parent Guaranty Obligations.”
(b) In the event of any default by the Company in making payment of the Guaranteed Note Indebtedness, or in performance of the Parent Guaranty Obligations, as aforesaid, in each case beyond the expiration of any applicable grace period, the Parent Guarantor agrees, on demand by the holders, to pay all the Guaranteed Note Indebtedness and to perform all the Parent Guaranty Obligations as are then or thereafter become due and owing or are to be performed under the terms of the Notes and this Agreement.
(c) above are herein called 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 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 know about the Company, the Notes, this Agreement, or the 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 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 Guaranty Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty (v) any and all right to cause a marshalling of payment and not assets of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of action by any court or governmental body with respect thereto, or to cause the Notes or upon holders to proceed against any other action, occurrence or circumstance whatsoever. 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 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 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 Agreement may (but need not) make reference to this Guaranty Agreementholder’s assessment of the financial condition of the Company. Each The Parent Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees acknowledges that no representations of one special counsel for the holders, taken as a whole, and, if reasonably required any kind whatsoever have been made by the Required Holdersholders to the Parent Guarantor, one local counsel except as expressly set forth in each applicable jurisdiction and/or one specialty counsel Section 6 herein.
(d) The Parent Guarantor further agrees that its liability as guarantor shall in each applicable specialtyno 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 holdersCompany, taken as or by any change or modification in a whole) incurred Note, this Agreement, any Subsidiary Guaranty, or by the Purchasers and each other 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 Note in connection with enforcing holder may lawfully have elected to apply such payments to any part or defending (or determining whether or how to enforce or defend) the provisions all of the Guaranteed Note Purchase 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 Notes, any Subsidiary Guaranty and this Guaranty AgreementSection 23 have been performed, notwithstanding any act or thing that might otherwise operate as a legal or equitable discharge of a surety. Each The Parent Guarantor hereby acknowledges further understands and agrees that each the 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 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 Agreementhereunder.
Appears in 1 contract
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) The Guarantor hereby absolutely, unconditionally and irrevocably guarantees, for the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing benefit 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 undereach Beneficiary, the Notes when prompt, punctual and as complete payment to or on behalf of the same shall become due and payable (relevant Beneficiary, whether at stated maturity or maturity, by required or optional prepayment or by prepayment, acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other each Obligation payable by such Beneficiary, whether for principal, interest, premiums, margin, indemnity obligations of the Company relevant Beneficiary or otherwise, as determined in accordance with the terms of such Obligation in existence on the date hereof, without regard to any amendments or modifications to the terms of such Obligations occurring after the Date of Issuance to which the Guarantor has not given its prior written consent (unless the consent of the 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 including interest that accrues after the commencement by or against the Guarantor of any proceeding under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”)any Debtor Relief Laws. The guaranty in the preceding sentence is an absolute, present and continuing This Guaranty constitutes a guaranty of payment when due and not of collectibility collection, and is in no way the obligations of the Guarantor under this Guaranty shall be primary, direct and immediate and not conditional or contingent upon any attempt request or demand made upon, or notice given to collect from the Company Guarantor (other than as set forth in Section 2.1(b) below), or the pursuit by the relevant Beneficiary of any other guarantor right, claim, demand or remedies they may have against any Person under any of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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, (whether pursuant to the requirements for terms thereof or otherwise). Each and every default in any payment specified guaranteed hereby of any term, covenant or condition contained in the 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 by the relevant Beneficiary and separate suits may be brought hereunder as each such cause of action arises. Each .
(b) No later than 12:00 p.m. New York time on the later of (i) one Business Day following receipt by the Guarantor agrees that of a notice of claim under an FSA Policy substantially in the Notes issued in connection with form required for such notice of claim under the Note Purchase Agreement may relevant FSA Policy, and (but need notii) make reference one Business Day prior to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses the date the related Obligation is due (including reasonable and documented attorneys’ fees by acceleration to the extent described in the Separation Agreement) under the relevant FSA Policy, the Guarantor shall make payment by wire transfer of one special counsel for immediately available funds in the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions relevant Obligation Currency of the Note Purchase Agreementrelevant Obligations (A) if the payment is being made on or before the date specified in clause (ii) of this subsection (b), to the Notes account of the beneficiary of the applicable FSA Policy, as specified in the notice of claim and this Guaranty Agreement. Each (B) in all other cases, to the following account of the Beneficiaries, or to such other account as the relevant Beneficiary may specify to the Guarantor hereby acknowledges and agrees that each from time to time by written notice delivered to the Guarantor’s liability hereunder is joint and several with each other Guarantor and any other Person(s) who may guarantee address specified in the obligations and Indebtedness under and in respect of the Notes and the Note Purchase Separation Agreement.
(i) for Financial Security Assurance Inc.
Appears in 1 contract
Guaranty. Each In consideration for, as a condition of, and as an inducement to certain entities (collectively, "SELLERS") that are affiliates of Medical Office Portfolio Limited Partnership, a Florida limited partnership, entering into that certain Purchase and Sale Agreement dated October 24, 2005 (the "AGREEMENT"), with certain entities (collectively, "BUYERS") that are affiliates of Windrose Medical Properties Trust, a Maryland REIT ("GUARANTOR"), and for other good and valuable consideration, Guarantor hereby irrevocably covenants and unconditionally guarantees agrees to each holder the due and punctual payment in full of with Sellers that if (a) default shall at any time be made by one or more Buyers under the principal Agreement, (b) one or more Buyers is liable to one or more Sellers for liquidated damages or otherwise as provided in the Agreement, and (c) such payment shall not be made as and when due, then Guarantor will forthwith pay said liquidated damages to said Seller(s); provided, however, that in no event shall the liability of Guarantor for any and all such liquidated damages under the Agreement and under any "Affiliate Contracts" (as defined in the Agreement) exceed the maximum aggregate amount of Five Million Dollars ($5,000,000.00). This Guaranty is a guaranty of payment (and not of collection) and is a surety agreement. Guarantor's liability hereunder is primary and direct and may be enforced without Sellers being required to resort to any other right, remedy or security, and this Guaranty shall be enforceable against Guarantor, without the necessity for any suit or proceedings on Sellers' part of any kind or nature whatsoever against Buyer, and without the necessity of any notice of non-payment, non-performance or non-observance or the continuance of any such default or of any notice of acceptance, protest, dishonor or presentment of this Guaranty or of Sellers' intention to act in reliance hereon or of any other notice or demand to which Guarantor might otherwise be entitled, all of which Guarantor hereby expressly waives. This Guaranty shall be a continuing Guaranty, and (whether or not Guarantor shall have notice or knowledge of any of the following) the liability and obligation of Guarantor hereunder shall remain in full force and effect without regard to, and shall not be released, discharged or in any way impaired by (a) any amendment or modification of, Makeor supplement to, or extension or renewal of, the Agreement; (b) any exercise or non-Whole Amountexercise of any right, power, remedy or privilege under or in respect of the Agreement or this Guaranty or any waiver, consent or approval by Sellers with respect to any of the covenants, terms, conditions or agreements contained in the Agreement; (c) any bankruptcy, insolvency, reorganization, arrangement, readjustment, composition, liquidation or similar proceeding relating to Buyers, or their properties (including without limitation any rejection or disaffirmance of the Agreement in any such proceedings); (d) any limitation on the liability or obligation of Buyers under the Agreement or its estate in bankruptcy or of any remedy for the enforcement thereof, resulting from the operation of any present or future provision of the federal bankruptcy law or any other statute or from the decision of any court; or (e) any permitted transfer by Buyers or any permitted assignment, mortgage or pledge of their interest under the Agreement. All of Sellers' rights and remedies under the Agreement and under this Guaranty are intended to be distinct, separate and cumulative and no such right and remedy therein or herein mentioned is intended to be in exclusion of or a waiver of any of the others. Guarantor further agrees that, to the extent that Buyers or Guarantor makes a payment or payments to Sellers, which payment or payments or any part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside and/or required to be repaid to Buyers or Guarantor or their respective estate, trustee, receiver or any other party under any bankruptcy law, state or federal law, common law or equitable cause, then to the extent of such payment or repayment, this Guaranty and the damages or part thereof which have been paid, reduced or satisfied by such amount shall be reinstated and continued in full force and effect as of the date such initial payment, reduction or satisfaction occurred. This Guaranty shall be legally binding upon Guarantor and its successors and assigns and shall inure to the benefit of Sellers and their successors and assigns. Reference herein to Buyers shall be deemed to include Buyers and their successors and assigns. THIS GUARANTY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF FLORIDA WITHOUT REGARD TO CONFLICTS OF LAW. If any legal action, arbitration, or other proceeding is brought for the enforcement of this Guaranty, or because of an alleged dispute, breach, default or misrepresentation in connection with any provisions of this Guaranty, the successful or prevailing party or parties shall be entitled to recover reasonable attorney's fees, costs and all expenses even if any, and interest on not taxable as costs (including, without limitation, interest accruing after the filing of any petition all such fees, costs and expenses incident to appeals), incurred in bankruptcy, that action or the commencement of any insolvency, reorganization or like proceeding, whether in addition to any other relief to which such party or not parties may be entitled. All notices and other communications hereunder shall be in writing and shall be deemed to have been duly given if personally delivered; mailed, first class postage prepaid; or sent by independent overnight courier to the parties at the following addresses: If to Guarantor: Windrose Medical Properties, L.P. 3502 Woodview Trace, Suite 210 Indian▇▇▇▇▇▇, ▇▇ ▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ Telecopier No.: ▇▇▇-▇▇▇-▇190 With a claim for postcopy to: Daniel R. Loftus, Esq. General Counse▇ Windrose Medical Properties Trust 3502 Woodview Trace, Suite 210 Indian▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇.: ▇▇▇-filing or post▇▇▇-petition interest is allowed ▇▇▇▇ If to Sellers: c/o Medical Office Port▇▇▇▇▇ ▇▇▇▇▇▇d Partnership 3801 PGA Boulevard, Suite 600 Palm Be▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Facsimile No. 561/622-4420 With a copy to: Lawrence J. Diamond, P.A. 3801 PGA Bo▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ Palm Be▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇.: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇. Facsimile N▇. ▇▇▇/▇▇▇-▇▇▇▇ ▇▇ to any such other address as any party hereto shall designate to the other parties in such proceeding)writing. This Guaranty and the Agreement constitutes the entire agreement, and supersedes all prior agreements, conduct and understandings, both written and oral, between Guarantor and Sellers with respect to the subject matter hereof. If any other amounts due underclause, provision or section of this Guaranty be held illegal or invalid by any court, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any validity of such Guaranteed Obligations when dueclause, each Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest provision 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 payment of section shall not affect 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holdersremaining clauses, taken as a wholeprovisions or sections hereof, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreementshall be construed and enforced as if such illegal or invalid clause, provision or section had not been contained herein. Each Guarantor hereby acknowledges In case any agreement or obligation contained in this Guaranty be held to be in violation of law, then such agreement or obligation shall be deemed to be the agreement or obligation of Guarantor, as the case may be, to the full extent permitted by law. The provisions of this Guaranty may be waived or amended, as to any particular transaction or otherwise, only by an instrument in writing executed by or on behalf of all parties to this Guaranty. No subsequent oral agreements or understandings, or conduct of any nature, shall be effective to modify any provision of, or limit the rights or remedies of any party under, this Guaranty, and agrees that each Guarantor’s liability hereunder is joint and several with each other Guarantor and no party may rely on any other Person(s) who may guarantee the obligations and Indebtedness under and in respect such oral agreements or understandings, or conduct of the Notes and the Note Purchase Agreementany nature. THE PARTIES HERETO HEREBY MUTUALLY WAIVE ANY RIGHT TO A TRIAL BY JURY ON ANY CLAIM, COUNTERCLAIM, SETOFF, DEMAND, ACTION OR CAUSE OF ACTION ARISING OUT OF OR IN ANY WAY PERTAINING OR RELATING TO THIS AGREEMENT, ANY DEALINGS OF THE PARTIES HERETO WITH RESPECT TO THIS AGREEMENT, OR IN CONNECTION WITH ANY OF THE TRANSACTIONS RELATED HERETO OR CONTEMPLATED HEREBY, OR THE EXERCISE OF ANY PARTY'S RIGHTS OR REMEDIES HEREUNDER, IN ALL OF THE FOREGOING CASES WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. A COPY OF THIS PARAGRAPH MAY BE FILED WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED AGREEMENT BETWEEN THE PARTIES IRREVOCABLY TO WAIVE TRIAL BY JURY, AND THAT ANY DISPUTE OR CONTROVERSY WHATSOEVER BETWEEN THEM SHALL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY. NONE OF THE PARTIES HERETO HAVE REPRESENTED, EXPRESSLY OR OTHERWISE, THAT THEY WOULD NOT, IN THE EVENT OF SUCH DISPUTE OR CONTROVERSY, SEEK TO ENFORCE THE PROVISIONS OF THIS PARAGRAPH.
Appears in 1 contract
Sources: Interest Purchase and Sale Agreement (Windrose Medical Properties Trust)
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) the principal ofGuarantors hereby irrevocably, Make-Whole Amount, if anyabsolutely, and interest on unconditionally guarantee and agree with the Bank that:
(includingi) FieldPoint shall perform, without limitationin all material respects, interest accruing after all duties, obligations and undertakings set froth in the filing of any petition Credit Agreement; and
(ii) all sums payable by FieldPoint under the Note or under the Credit Agreement will be promptly paid in bankruptcy, or full when due in accordance with 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 or by required or optional prepayment or by acceleration or otherwise), provisions thereof.
(b) If FieldPoint shall for any other sums reason fail to perform any Guarantied Obligation, Guarantors will either:
(i) cause such Guarantied Obligation to be promptly and fully performed, or, at the Bank's election,
(ii) make all payments to the Bank which may become due under the terms and provisions from time to time be required of the Notes or the Note Purchase Agreement and FieldPoint.
(c) Regardless of whether the performance Bank is (at any time) precluded or stayed from enforcing or exercising any of all other obligations of the Company its rights or remedies under the Note Purchase AgreementCredit Agreement or any related instrument or document (collectively, (all the "Operative Documents") against Guarantors, such obligations described in clauses (a)rights and remedies may be enforced directly against Guarantors, (b) and (c) above are herein called as a primary obligation of Guarantors, without the “Guaranteed Obligations”). The guaranty in joinder of, demand on or the preceding sentence is an absolute, present and continuing guaranty taking of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company other action against FieldPoint or any other guarantor person. Regardless of the Notes whether FieldPoint or upon any other action, occurrence person is precluded or circumstance whatsoever. In the event that the Company shall fail so to stayed from (or otherwise fails 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 payment of perform any of the Guaranteed Obligations (upon demand by the Bank), Guarantors shall give rise pay or perform (or cause to be paid or performed) such Guaranteed Obligations. Without limiting the foregoing provisions, if enforcement of the rights or remedies of the Bank under the Operative Documents is dependent upon delivering notices or taking any other actions (such as delivering a separate cause demand), then the Bank may deliver such notices to and take such other action with or against Guarantors (in lieu of action hereunder FieldPoint) for all purposes under this Agreement and separate suits may be brought hereunder as each cause of action arisesthe Operative Documents. Each Guarantor agrees that Nothing herein requires the Notes issued in connection with the Note Purchase Agreement may (but need not) make reference Bank to first exercise or exhaust remedies against FieldPoint or any other person before exercising remedies against Guarantors pursuant to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase Agreement.
Appears in 1 contract
Guaranty. Each For the benefit of each Person to whom the Lessee owes any payment or other obligation under the Operative Documents (each a "Guaranty Party"), -------------- Guarantor hereby irrevocably and unconditionally guarantees to each holder the full and prompt payment when due (whether by acceleration or otherwise) of Lease Payments, Supplemental Payments and punctual payment in full any interest due thereon and of (a) the principal of, Make-Whole Amount, if any, all obligations and interest on liabilities (including, without limitation, indemnities, fees and interest accruing after thereon) of Lessee now existing or hereafter incurred under, arising out of or in connection with this Agreement or any other Operative Document and the filing due performance and compliance by Lessee with the terms of the Lease Agreement and the Operative Documents binding on Lessee (all such payments, interest, obligations and liabilities, collectively, the "Guaranteed Obligations"). All payments by ----------------------- Guarantor under this guaranty shall be made on the same basis as payments by Lessee under the Operative Documents. Guarantor hereby waives notice of acceptance of this guaranty and notice of any petition in bankruptcyliability to which it may apply, and waives presentment, demand of payment, protest, notice of dishonor or the commencement nonpayment of any insolvencysuch liability, reorganization suit or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding)taking of other action by an Guaranty Party against, and any other amounts due undernotice to, any party liable thereon (including such Guarantor or any other guarantor). Any Guaranty Party may at any time and from time to time unless otherwise prohibited under the Notes when Operative Documents without the consent of, or notice to Guarantor, without incurring responsibility to Guarantor and without impairing or releasing the obligations of Guarantor hereunder, upon or without any terms or conditions and in whole or in part:
(a) change the manner, place or terms of payment of, and/or change or extend the time of payment of, renew or alter, any of the Guaranteed Obligations, any security therefor, or any liability incurred directly or indirectly in respect therof, and the guaranty herein made shall apply to the Guaranteed Obligations as the same shall become due and payable (whether at stated maturity so changed, extended, renewed or by required or optional prepayment or by acceleration or otherwise), altered;
(b) sell, exchange, release, surrender, realize upon or otherwise deal with in any manner and in any order any property by whomsoever at any time pledged or mortgaged to secure, or howsoever securing, the Guaranteed Obligations or any liability is (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and/or any offset there against;
(c) exercise or refrain from exercising any rights against Lessee or others or otherwise act or refrain from acting;
(d) settle or compromise any of the Guaranteed Obligations, any security therefor or any liability (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof;
(e) apply any sums by whomsoever paid or howsoever realized to any liability or liabilities of Lessee to any Guaranty Party regardless of what liabilities or liabilities of Lessee remain unpaid; and/or
(f) consent to or waive any breach of, or any act, omission or default under, any of the Operative Documents or otherwise amend, modify or supplement any of the Operative Documents or any of such other instruments or agreements. The obligations of Guarantor under this Section 8 are absolute and unconditional and shall remain in full force and effect without regard to, and shall not be released, suspended, discharged, terminated or otherwise affected by, any circumstance or ocurrence whatsoever, including,without limitation (i) any action or inaction by any Guaranty Party; or (ii) any invalidity, irregularity or unenforceability of all or part of the Guaranteed Obligations or of any security therefor. The obligations under this Section 8 are primary obligations of Guarantor. If and to the extent that Guarantor makes any payment to any Guaranty Party or to any other sums Person pursuant to or in respect of this Section 8, any claim which Guarantor may become due have against Lessee by reason thereof shall be subject and subordinate to the prior payment in full of the Guaranteed Obligations. The obligations under this Section 8 are continuing and all liabilities to which they apply or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon. No failure or delay on the part of any Guaranty Party in exercising any right, power or privilege hereunder and provisions no course of dealing between Guarantor, any Guaranty Party or the holder of any Tranche A Note or Tranche B Note shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights, powers and remedies herein expressly provided are cumulative and not exclusive of any rights, powers and remedies which any Guaranty Party would otherwise have. No notice to or demand on Guarantor in any case shall entitle Guarantor to any other further notice or demand in similar or other circumstances or constitute a waiver of the Notes rights of any Guaranty Party to any other or further action in any circumstances without notice or demand. This guaranty shall continue to be effective, or be reinstated, as the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreementcase may be, (all such obligations described in clauses (a)if at any time payment, (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes part thereof, or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 payment of any of the Guaranteed Obligations shall give rise to a separate cause is rescinded or must otherwise be restored or returned by the Guaranty Parties upon the insolvency, bankruptcy, dissolution, liquidation or reorganization 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holdersLessee or Guarantor, taken or upon or as a whole, and, if reasonably required by result of the Required 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 by the Purchasers and each other holder appointment of a Note in connection with enforcing receiver, intervenor, or defending (conservator of, or determining whether trustee or how to enforce similar officer for, Lessee or defend) the provisions Guarantor or any substantial part of the Note Purchase Agreementits property, 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 all as though such payment had not been made and any other Person(s) who may guarantee statute of limitations in favor of Guarantor against any Guaranty Party relating to any such amount to be restored or returned shall be tolled, or deemed to have been tolled, to the obligations and Indebtedness under and in respect of extent permitted by law, during the Notes and period from the Note Purchase Agreementdate such payment was made to such Guaranty Party until the date such Guaranty Party so restores or returns such amount.
Appears in 1 contract
Sources: Participation Agreement (BRL Universal Equipment Corp)
Guaranty. Each Designated Guarantor hereby irrevocably jointly and severally, absolutely, unconditionally and irrevocably
(a) guarantees to each holder the due full and punctual payment in full of (a) the principal ofwhen due, 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 or maturity, by required or optional prepayment or by acceleration prepayment, declaration, acceleration, demand or otherwise), of all Obligations of the Borrower and each other Obligor now or hereafter existing, whether for principal, interest, fees, expenses or otherwise (b) any other sums including all such amounts which may would become due under but for the terms and provisions operation of the Notes or the Note Purchase Agreement and (cautomatic stay under Section 362(a) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 AmericaBankruptcy Code, pursuant to the requirements for payment specified in the Notes 11 U.S.C. ss.362(a), and the Note Purchase Agreement. Each default in payment operation of any Sections 502(b) and 506(b) of the Guaranteed Obligations shall give rise to United States Bankruptcy Code, 11 U.S.C. ss.502(b) and ss.506(b)), and
(b) indemnifies and holds harmless each Secured Party and each holder of a separate cause of action hereunder Note for any 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 all reasonable and documented costs and expenses (including reasonable attorney's fees and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required Holders, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialty, for the holders, taken as a wholeexpenses) incurred by such Secured Party or such holder, as the Purchasers case may be, in enforcing any rights under the guaranty set forth in this Article IX; provided, however, that (i) DRI I, with respect to its guaranty of the Obligations of Holdings, and (ii) each Affiliate Guarantor shall be liable under the guaranty set forth in this Article IX for the maximum amount of such liability that can be incurred without rending such guaranty, as it relates to such Designated Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount. The guaranty set forth in this Article IX constitutes a guaranty of payment when due and not of collection, and each other Designated Guarantor specifically agrees that it shall not be necessary or required that any Secured Party or any holder of a any Note in connection with enforcing exercise any right, assert any claim or defending demand or enforce any remedy whatsoever against the Borrower or any other Obligor (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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(sPerson) who may guarantee before or as a condition to the obligations and Indebtedness of each Designated Guarantor under and the guaranty set forth in respect of the Notes and the Note Purchase Agreementthis Article IX.
Appears in 1 contract
Guaranty. Each Guarantor hereby irrevocably (a) Subject to the provisions of Section 2.01(b), each Obligor hereby, jointly and severally, unconditionally and irrevocably, guarantees to each holder Guaranteed Creditor and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Borrower or its Subsidiaries when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower’s Obligations.
(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the maximum liability of each Obligor hereunder and punctual payment under the other Loan Documents shall in full no event exceed the amount which can be guaranteed by such Obligor under applicable federal and state laws relating to the insolvency of debtors.
(ac) the principal of, Make-Whole Amount, if any, Each Obligor further agrees to pay any and interest on all expenses (including, without limitation, interest accruing after all reasonable fees and disbursements of counsel) which may be 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 filing 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 petition in bankruptcyGuaranteed Creditor hereunder.
(e) No payment or payments made by the Borrower, or the commencement of any insolvencyObligor, 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 or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company guarantor or any other guarantor of Person or received or collected by a Guaranteed Creditor from the Notes or upon Borrower, an Obligor, any other action, occurrence guarantor or circumstance whatsoever. 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 other Person by virtue of any kind, action or proceeding or any set-off or appropriation or application at any time or from time to time in lawful money reduction of the United States of America, pursuant to the requirements for payment specified in the Notes and the Note Purchase Agreement. Each default or in payment of any of the Guaranteed Borrower’s Obligations shall give rise be deemed to a separate cause modify, reduce, release or otherwise affect the liability of action any Obligor 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 which shall, notwithstanding any such payment or payments (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required other than payments made by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing Borrower or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 an Obligor in respect of the Notes and Borrower’s Obligations or payments received or collected from an Obligor in respect of the Note Purchase AgreementBorrower’s Obligations), remain liable for the Borrower’s Obligations up to the maximum 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. Each Guarantor For valuable consideration, the receipt and sufficiency of which are hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) the principal of, Make-Whole Amount, if anyacknowledged, and interest on in consideration of the Emerging Technology Fund of the Government Land Bank d/b/a MassDevelopment (including, without limitation, interest accruing after hereinafter called the filing of any petition in bankruptcy"Bank") having made, or now or in the commencement of any insolvencyfuture making, reorganization advances or like proceedingotherwise giving credit to GTC ▇▇▇▇▇ Laboratories, whether or not a claim for post-filing or post-petition interest is allowed in such proceedingInc. (hereinafter called the "Borrower"), and any other amounts due underhowever such advances or credit may be made or evidenced, the Notes when undersigned does hereby unconditionally guarantee to Bank, its successors and as the same shall become due assigns, full and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms prompt payment and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other present and future obligations of the Company under the Note Purchase AgreementBorrower to Bank, (including all such obligations described in clauses (a), (b) renewals and (c) above are herein called the “Guaranteed Obligations”)extensions thereof or substitutions therefor. The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when due, each Guarantor undersigned also agrees to pay in addition thereto all costs, expenses and reasonable attorney's fees at any time paid or incurred by the same when Bank in endeavoring to enforce this Guaranty. Notice of acceptance of and action taken by 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 Borrower to Bank (and renewals and extensions thereof or substitutions therefor) now existing or hereafter arising. Upon any default by Borrower with respect to any of the obligations herein guaranteed, the liability of the undersigned hereunder shall be deemed to have become immediately due to the holders entitled theretoand 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 lawful money 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 other defaults by Borrower or the undersigned. The liability of the undersigned is primary and shall not be terminated or otherwise affected or impaired by, and the undersigned waives notice of: Bank's granting time to Borrower (regardless of the number or length of such grants of time) or any other 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 security in whatever form for any of the obligations hereby guaranteed, whether or 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 obligations guaranteed hereby; any change in the membership of any partnership which shall be the Borrower; any fraud, illegal or 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 America, debtor relief granted to Borrower pursuant to the requirements for payment specified law presently in the Notes and the Note Purchase Agreement. Each default in force or hereafter enacted; payment of any or all obligations and indebtedness of Borrower in the event such payment is invalidated or avoided by a trustee, custodian or receiver of Borrower; the dissolution of Borrower; or the reorganization, merger or consolidation of Borrower into or with another entity, corporate or otherwise, or the sale or disposition of all or substantially all of the Guaranteed 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 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 give rise not be effective to a separate cause the extent that by virtue of action hereunder and separate suits may be brought hereunder as each cause such waiver the liability of action arises. Each Guarantor agrees that the Notes issued in connection is rendered invalid, avoidable or unenforceable under any applicable law dealing with the Note Purchase Agreement may (but need not) make reference recovery or avoidance of so-called fraudulent conveyances or otherwise. Guarantor further warrants and represents to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase Agreement.Bank that:
Appears in 1 contract
Sources: Guaranty (Genzyme Transgenics Corp)
Guaranty. (a) Each Guarantor Borrower hereby irrevocably unconditionally and unconditionally irrevocably, guarantees to each holder the Lender:
(i) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of (a) the principal ofObligations, Make-Whole Amountincluding unpaid and accrued interest thereon, 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 each case when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise)payable, (b) any other sums which may become due under all according to the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and the other Financing Documents;
(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 any time be due and payable in accordance with this Guaranty Agreement, the Notes or any of the other Financing Documents;
(iii) the due and punctual performance by the other Borrowers of all of the other terms, covenants and conditions contained in the Financing Documents; and
(iv) all the other Obligations of the other Borrowers.
(b) The obligations and liabilities of each Borrower as a guarantor under this Section 2.3.9 shall be absolute and unconditional and joint and several, irrespective of the genuineness, validity, priority, regularity or enforceability of this Agreement, any of the Notes or any of the Financing Documents or any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Guarantor hereby acknowledges and Borrower in its capacity as a guarantor expressly agrees that each Guarantor’s liability hereunder is 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 with each other Guarantor obligations and liabilities of such Borrower as a guarantor hereunder:
(i) waive compliance with, or any defaults under, or grant any other Person(sindulgences under or with respect to any of the Financing Documents;
(ii) who 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 respects with the other Borrowers as if this Section 2.3.9 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 2.3.9, 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 2.3.9, 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 guarantee 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 Lender shall not be required to make any demand upon any of the Borrowers, or to sell the Collateral or otherwise pursue, enforce or exhaust its remedies against the 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 2.3.9, either in the same action, if any, brought against any one or more of 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 liabilities or obligations of any one or more of the Borrowers, any other guarantor or any obligor under any of the Financing Documents, arising out of, or by virtue of, any bankruptcy, 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 2.3.9, 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 2.3.9 in any manner whatsoever, and this Section 2.3.9 shall remain and continue in full force and effect. It is the intent and purpose of this Section 2.3.9 that each Borrower shall and does hereby waive all rights and benefits which might accrue to any other guarantor by reason of any such proceeding, and the Borrowers agree that they shall be liable for the full amount of the obligations and Indebtedness liabilities under this Section 2.3.9, regardless of, and in respect irrespective to, any modification, limitation or 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 2.3.9, 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 2.3.9 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 Note Purchase Agreementamount of any portion of or all of the indebtedness guaranteed by this Section 2.3.9;
(v) demand for observance, performance or enforcement of any of the terms or provisions of this Section 2.3.9, the Notes or any of the other Financing Documents;
(vi) all errors and omissions in connection with the Lender’s administration of all indebtedness guaranteed by this Section 2.3.9, except errors and omissions resulting from acts of bad faith;
(vii) any right or claim of right to cause a marshalling of the assets of any one or more of the other Borrowers;
(viii) any act or omission of the Lender which 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 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 not any credits, offsets or defenses exist with respect to this Section 2.3.9.
Appears in 1 contract
Guaranty. Each (a) The Guarantor hereby irrevocably and unconditionally unconditionally, guarantees to each holder the due and punctual payment when due of all payment obligations of the Obligors under the Credit Agreement, up to a maximum amount as to principal of US$400,000,000 plus all interest, fees, indemnities and other amounts payable under the Credit Agreement, including amounts that would become due but for the operation of the automatic stay under Section 362(c) of the United States Bankruptcy Code or similar provisions under the laws of the Bahamas, The Netherlands or other applicable law (collectively, the "Guaranteed Obligations"). In the event that any of the Guaranteed Obligations ---------------------- shall not be paid when due within any specified grace period provided for in full of (a) the principal ofCredit Agreement, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing the Guarantor agrees to pay such Guaranteed Obligations within ten Business Days after the filing giving by the Administrative Agent to the Guarantor and the Process Agent named in Section 15 hereof of written notice (a "Demand") demanding payment by the Guarantor, provided that in the event any petition in bankruptcy, or such payment -------- is required to be made by 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 underGuarantor hereunder, the Notes when and as Guarantor may cause such obligation or liability to be paid on its behalf by any corporation affiliated with it, including the same Obligors, provided that the Guarantor shall become due and payable (whether at stated maturity nevertheless be unconditionally obligated to pay such obligation or by required liability if such affiliate, including the Obligors, shall fail timely to pay such obligation or optional prepayment or by acceleration or otherwise), liability.
(b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence This Guaranty is an absolute, present and continuing guaranty a guarantee of payment and not of collectibility and is in no way conditional performance or contingent upon any attempt to collect from collection. The obligation of the Company or Guarantor hereunder shall be independent of the obligation of any other guarantor Guarantor (as such term is defined in the Credit Agreement), all such obligations being joint and several.
(c) The Guarantor shall be subrogated to all rights of the Notes or upon any other action, occurrence or circumstance whatsoever. In Banks against 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 Obligors in respect of any kind, in lawful money of amounts paid by the United States of America, Guarantor pursuant to the requirements for payment specified in provisions of this Guaranty; provided, however, that the Notes and the Note Purchase Agreement. Each default in payment Guarantor shall not -------- ------- be entitled to enforce or receive any payments arising out of, or based upon, such right of any of subrogation until all the Guaranteed Obligations shall give rise to a separate cause of action hereunder have been irrevocably and separate suits indefeasibly paid in full and no Guaranteed Obligations may be brought hereunder as each cause of action arises. Each Guarantor agrees that arise in 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase Agreementfuture.
Appears in 1 contract
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) Guarantor hereby absolutely, unconditionally and irrevocably guarantees the principal of, Make-Whole Amount, if any, full and interest on (including, without limitation, interest accruing after prompt performance by each of the filing Seller Entities of any petition in bankruptcy, or all of their obligations to Purchaser pursuant to the commencement terms 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 underthis Agreement, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Assignment Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Patent Assignment Agreement, including all payment obligations (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”), and the Guaranteed Obligations shall be enforceable against Guarantor to the same extent as if Guarantor were the primary obligor under this Agreement. Without limiting the foregoing, Guarantor hereby agrees to cause each of the Seller Entities to comply with the terms and conditions of this Agreement, the Assignment Agreement and the Patent Assignment Agreement. The liability of Guarantor under this guaranty in the preceding sentence is an shall be absolute, present direct and continuing guaranty of payment immediate and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when due, each Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice pursuit of any kind, remedies against any Seller Entity. A separate action or actions may be brought and prosecuted against Guarantor to enforce this guaranty irrespective of whether any action is brought against any Seller Entity or whether any Seller Entity is joined in lawful money of the United States of America, pursuant such action or actions.
(b) Guarantor hereby waives and agrees not to the requirements for payment specified in the Notes and the Note Purchase Agreement. Each default in payment assert or take advantage of any of the Guaranteed Obligations shall give rise following: (i) without limiting the defense of statute of limitations with respect to a separate cause claims to be asserted against any Seller Entity, the defense of the statute of limitations in any action hereunder and separate suits or for the collection of or the performance of any Guaranteed Obligation; (ii) any defense that may be brought hereunder as each cause 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, creation, or incurring of any new or additional obligation or of any action arises. Each Guarantor agrees that or non-action on the Notes issued part of any other person whomsoever, in connection with any Guaranteed Obligation; (iv) acceptance or notice of acceptance of this guaranty by Purchaser; (v) notice of presentment and 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 respect to any Guaranteed Obligation.
(c) Guarantor hereby represents and warrants that as of the Note Purchase 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 may has been duly authorized by it and its Affiliates, as applicable; (but need notd) make reference to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable Agreement has been duly executed and documented costs delivered by it and expenses (including reasonable its Affiliates and documented attorneys’ fees of one special counsel for assuming the holdersdue authorization, taken as a whole, and, if reasonably required execution and delivery by the Required Holdersother parties hereto and thereto, one local counsel constitute the valid and binding obligations of it and its Affiliates, as applicable, enforceable against it in each accordance with their respective terms, subject to Laws of general application relating to bankruptcy, insolvency, moratorium, the relief of debtors and enforcement of creditors’ rights in general, (e) as of the date of this Agreement, it and its Subsidiaries are in compliance in all material respects with all applicable jurisdiction and/or one specialty counsel in each applicable specialty, for the holders, taken as a whole) incurred by the Purchasers and each other holder of a Note Laws in connection with enforcing or defending its and their obligations under this Agreement; and (or determining whether or how to enforce or defendf) the provisions as of the Note Purchase date of this Agreement, there is no outstanding litigation, arbitrated matter or other dispute to which it or any of its Affiliates is a party, and which, if decided unfavorably to it or its Affiliates, would reasonably be expected to have a material adverse effect on the Notes and ability of it or its Affiliates to fulfill its or their respective obligations under 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 Notes and the Note Purchase Agreement.
Appears in 1 contract
Guaranty. Each The Guarantor hereby irrevocably irrevocably, unconditionally and unconditionally absolutely guarantees to each holder the due and punctual payment in full of (a) the principal of, Make-Whole Amount, if any, of 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 Promissory Note when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), ) and (b) any other sums which may become due under the terms and provisions of the Notes or the Promissory Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (cb) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company Borrower or any other guarantor of the Notes Promissory Note or upon any other action, occurrence or circumstance whatsoever. In the event that the Company Borrower shall fail so to pay any of such Guaranteed Obligations when dueObligations, each the Guarantor agrees to pay the same when due to the holders entitled theretoLender, 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 AgreementPromissory Note. 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 The Guarantor agrees to pay all reasonable and documented costs to indemnify and expenses save the Lender harmless from and against any damage, loss, cost or expense (including reasonable and documented attorneys’ fees of one special counsel for fees) which the holders, taken Lender may incur or be subject to as a wholeconsequence, anddirect or indirect, if reasonably required of (x) any breach by the Required HoldersGuarantor or by the Borrower of any representation, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialtywarranty, for covenant, term or condition in, or the holdersoccurrence of any default under, taken this Guaranty, the Promissory Note or any other instrument referred to therein, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a wholeresult of any such breach or default, (y) incurred by any legal action commenced to challenge the Purchasers validity or enforceability of this Guaranty, the Promissory Note or any other instrument referred to therein and each other holder of a Note in connection with (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty AgreementGuaranty. Each The Guarantor hereby acknowledges and agrees that each the Guarantor’s liability hereunder is joint and several with each other Guarantor and any other Person(sperson(s) who may guarantee the obligations and Indebtedness indebtedness under and in respect of the Notes and the Note Purchase AgreementPromissory Note.
Appears in 1 contract
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees Subject to each holder the due and punctual payment in full rights of (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), and any other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due Maker under the terms Promissory Note and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, Guarantor hereby guarantees to Seller full payment of this Note as and when due as well as all renewals, rearrangements, extensions and modifications thereof and any sums due or to become due pursuant to any instruments which secure the payment of this Note (all such obligations described the "Obligations"). Any ----------- dispute between Guarantor and Seller shall be subject to the dispute resolution requirements of the Purchase Agreements, provided that Seller shall not be required to (i) proceed against Maker in clauses (a)any manner or make any effort at collection of this Note from Maker, (bii) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional proceed against or contingent upon exhaust any attempt to collect security held from the Company Maker or any other guarantor person, (iii) have Maker joined with Guarantor, to the full extent not legally mandated, in any suit arising out of this guaranty or this Note, or (iv) pursue any other remedy in Seller's power whatsoever. Guarantor waives presentment, grace, demand, protest and notice of protest and dishonor on any and all forms of this Note, notice of intent to accelerate, notice of acceleration, and notice of disposition of collateral, and waives notice of the Notes or upon amount of the Note outstanding at any other actiontime, occurrence or circumstance whatsoever. 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 and also notice of any kindacceptance of this guaranty. Acceptance on the part of Seller is presumed by its request for this guaranty and delivery of this guaranty to Seller. Guarantor's guaranty herein reasonably may be expected to benefit Guarantor, in lawful money of the United States of Americadirectly or indirectly, pursuant to the requirements for payment specified in the 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 entry into, 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holdersperformance of, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of this guaranty are in the Note Purchase Agreement, the Notes and best interests of Guarantor. Guarantor recognizes that Seller is relying upon 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 Notes guaranty and the Note Purchase Agreementundertakings of Guarantor herein in making an extension of credit to Maker, and acknowledges that the execution and delivery of this guaranty by Guarantor are material inducements to Seller in entering into this transaction.
Appears in 1 contract
Sources: Stock and Limited Partnership Interest Purchase Agreement (Charys Holding Co Inc)
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) Holdings hereby fully and irrevocably guarantees (the principal of, Make-Whole Amount, if any, “Guaranty”) the indemnities and interest on performance of Purchaser (including, without limitation, interest accruing after including the filing payment of the Purchase Price) now existing or hereafter arising under this Agreement or any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, agreement related hereto to which Purchaser is party (whether or not a claim for post-filing or post-petition interest is allowed Purchaser at any time in such proceeding), and any other amounts due underquestion then exists) (collectively, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence Guaranty is an absolutea full, present unconditional, irrevocable, absolute and continuing guaranty of performance and payment when due and not merely of collectibility collection, and Holdings shall remain liable with respect to the Obligations hereunder until the performance or payment, as the case may be, of such Obligations.
(b) Holdings’ guarantee and responsibility shall not be discharged, released, diminished, or impaired in whole or in part by any setoff, counterclaim, defense, act or occurrence which Holdings may have against Purchaser as a result of or arising out of this Agreement, any agreement related hereto to which Holdings is in no way conditional or contingent upon any attempt to collect from the Company party or any other guarantor transaction.
(c) The obligations of Holdings hereunder are independent of the Notes Obligations, and a separate action or upon actions may be brought and prosecuted against Holdings regardless of whether any action is brought against Purchaser or whether Purchaser is joined in any such action or actions. The obligations of Holdings hereunder shall be unconditional, and shall not be released, discharged, diminished or impaired by (i) the renewal, extension, modification or alteration by Purchaser, the Target Companies and the Seller Representative, with or without the knowledge or consent of Holdings, of this Agreement or any agreement related hereto to which Purchaser is party or of any liability or obligation of Purchaser thereunder or of any document or instrument under which Holdings’ obligations hereunder arise, (ii) any forbearance or compromise granted to Purchaser by the Seller Representative when dealing with Purchaser, except to the extent of such forbearance or compromise, (iii) any change in corporate structure or ownership of Purchaser or the bankruptcy, insolvency, liquidation, receivership, dissolution, winding-up or termination of Purchaser or the fact that at any time Purchaser does not exist, (iv) the inaccuracy of any of the representations and warranties of Purchaser under this Agreement or any agreement related hereto to which Purchaser is party, (v) any neglect, delay, omission, failure or refusal of Purchaser to take or prosecute any action in connection with this Agreement or any agreement related hereto to which Purchaser is party, (vi) the full or partial release of Purchaser on any Obligation, except that Holdings shall be released pro tanto to the extent the Seller Representative expressly releases Purchaser from liability with respect to the Obligations, (vii) the lack of enforceability of this Agreement or any agreement related hereto to which Purchaser is party, or (viii) any other actioncircumstance relating to Holdings’ obligations hereunder that might otherwise constitute a legal or equitable discharge of or defense to Holdings not available to Purchaser, occurrence who is liable for such Obligations.
(d) If Purchaser fails to perform Obligations requiring payment, in whole or circumstance whatsoever. In the event that the Company shall fail so to pay any of in part, when such Guaranteed Obligations when are due, each Guarantor agrees to then Holdings shall promptly pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, such Obligations in lawful money of the United States within five (5) Business Days of America, pursuant to the requirements receipt of demand for payment specified in from the Notes Seller Representative.
(e) Holdings represents and warrants for and as to itself that it has received, or will receive, direct or indirect benefit from the Note Purchase Agreement. Each default in payment making 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase AgreementGuaranty.
Appears in 1 contract
Sources: Securities Purchase Agreement (ExlService Holdings, Inc.)
Guaranty. Each Guarantor hereby irrevocably Corporate Guarantor, jointly and severally (if more than one), absolutely and unconditionally guarantees guarantee the indefeasible, full, and prompt payment to each holder the due Lender, including its successors and punctual payment in full assignees, of (ai) any and all Obligations incurred by Borrower pursuant to this Agreement, (ii) the principal offull and prompt payment and performance when due of any and all additional obligations of Borrower to Lender under this Agreement, Make-Whole Amounttogether with any replacements, if anysupplements, renewals, modifications, consolidations, restatements and extensions thereof, and interest on (including, without limitation, interest accruing after iii) the filing full and prompt payment and performance 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 or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of Borrower to Lender under any other agreements, documents or instruments now or hereafter evidencing, securing or otherwise relating to the Company under the Note Purchase Agreement, Obligations (all such obligations described in clauses (a), (b) and (c) above are herein called the this “Guaranteed ObligationsGuaranty”). The guaranty in the preceding sentence Guaranty is an absolute, present and continuing guaranty a guarantee of payment and not of collectibility collection. Guarantor further agrees to repay the Obligations on demand, without requiring Lender first to enforce or collect or exercise any rights, remedies, privileges, or powers against Borrower. This is a guarantee of payment and performance, and not of collection. This is an absolute, unconditional, primary, and continuing obligation and will remain in full force and effect until all of the Obligations have been indefeasibly paid in full and Lender has terminated this Guaranty. This Guaranty shall be construed in accordance with the laws of the State of Utah, and shall inure to the benefit of Lender and its successors and assigns. To the extent not prohibited by applicable law, Guarantor waives its right to a trial by jury of any claim or cause of action based upon, arising out of or related to this Guaranty, this Agreement and all other documentation evidencing the Obligations, in any legal action or proceeding. Any such claim or cause of action shall be tried by court sitting without a jury. For each Guarantor that resides in a community property state, including, without limitation Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin, or as otherwise requested by L▇▇▇▇▇, the spouse of such Guarantor shall execute, at any time upon demand, and agree to a Spousal Consent to Loan form. So long as any of the Obligations hereby guaranteed remain indefeasibly unpaid or undischarged (other than indemnification obligations which by their terms survive the indefeasible payment of the Obligations and the release of any Collateral) or Lender has any obligation to make the Loan, (i) Guarantor will not, by paying any sum recoverable hereunder (whether or not demanded by Lender) or by any means or on any other ground, claim any set off or counterclaim against Borrower in respect of any liability of Guarantor to Borrower, or (ii) in proceedings under federal bankruptcy law or insolvency proceedings of any nature, prove in competition with L▇▇▇▇▇ in respect of any payment hereunder, or be entitled to have the benefit of, any counterclaim or proof of claim or dividend or payment by or on behalf of Borrower or the benefit of any other security for any of the Obligations which, now or hereafter, Lender may hold or in which it may have any share. Guarantor hereby expressly waives any right of contribution or reimbursement from or indemnity against Borrower or any other guarantor, whether at law or in equity, arising from any payments made by Guarantor, and Guarantor acknowledges that Guarantor has no way conditional or contingent upon any attempt right whatsoever to collect from the Company proceed against Borrower or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when due, each Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice for reimbursement of any kind, in lawful money of the United States of America, pursuant to the requirements such payments for payment specified in the Notes and the Note Purchase Agreement. Each default in payment of so long as 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 remain indefeasibly unpaid or undischarged (other than indemnification obligations which by their terms survive 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions indefeasible payment of the Note Purchase Agreement, 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 Notes Obligations and the Note Purchase Agreementrelease of any Collateral).
Appears in 1 contract
Sources: Business Loan and Security Agreement (Nextnrg, Inc.)
Guaranty. Each Guarantor hereby In order to induce ▇▇▇▇▇▇▇ Overseas Holdings S.A. (the "Seller") to enter into the Stock Purchase Agreement (the "Agreement"), dated as of June 16, 2000, between the Seller and RH Financial Corporation (the "Buyer"), Ralcorp Holdings, Inc., a Delaware corporation, irrevocably and unconditionally guarantees to each holder the due prompt, complete and punctual performance, compliance and payment in full of all the obligations of the Buyer under the Agreement. Ralcorp further agrees that its obligations under the Agreement shall not be affected by any event, condition or circumstance whatsoever (with or without notice to, or knowledge of, the Buyer or Ralcorp) including without limitation any which constitutes, or might be construed to constitute, a legal or equitable discharge of the Buyer for its obligations under the Agreement or of Ralcorp of its guaranty hereunder. In furtherance of the foregoing and without limiting the generality thereof, Ralcorp agrees that (a) the principal of, Make-Whole Amount, if any, this Guaranty is a guaranty of payment 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 performance when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), not collectability; (b) any other sums which may become due under the terms this Guaranty is a primary obligation of Ralcorp and provisions not merely a contract of the Notes or the Note Purchase Agreement surety; and (c) the payment or performance by Ralcorp of all other obligations a portion, but not all, of the Company obligations under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is Agreement shall in no way conditional limit, affect, modify or contingent upon abridge any attempt to collect from the Company or liability of Ralcorp for any other guarantor portion of the Notes obligations which have not been paid or upon any other action, occurrence or circumstance whatsoeverperformed. 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 demandRalcorp waives all diligence, presentment, protest or and demand, and also notice of dishonor, demand, protest and nonpayment. No failure by the Seller to assert any kindright or pursue any remedy with respect to the Buyer or under this Guaranty shall relieve Ralcorp from its obligations hereunder. Ralcorp agrees that this Guaranty shall not be diminished or affected, in lawful money any way, by any bankruptcy, reorganization, arrangement, liquidation or similar proceeding with respect to the Buyer or by dissolution of the United States Buyer. This Guaranty shall continue in full force and effect, notwithstanding any merger, consolidation, sale of America, pursuant to assets or any other similar transaction by the requirements for payment specified in the Notes and the Note Purchase AgreementBuyer or Ralcorp. 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 Ralcorp further agrees to pay all reasonable and documented costs and expenses (expenses, including without limitation, reasonable and documented attorneys’ fees of one special counsel for the holders' fees, taken as a whole, and, if reasonably required by the Required Holders, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialty, for the holders, taken as a whole) at any time paid or incurred by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions on behalf of the Note Purchase AgreementSeller in enforcing this Guaranty. June 16, 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 Notes and the Note Purchase Agreement2000 RALCORP HOLDINGS, INC.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ralcorp Holdings Inc /Mo)
Guaranty. (a) Each Guarantor Borrower hereby irrevocably unconditionally and unconditionally irrevocably, guarantees to each holder the Lender:
(i) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of (a) the principal ofObligations, Make-Whole Amountincluding unpaid and accrued interest thereon, 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 each case when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise)payable, (b) any other sums which may become due under all according to the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and the other Financing Documents;
(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 any time be due and payable in accordance with this Guaranty Agreement, the Notes or any of the other Financing Documents;
(iii) the due and punctual performance by the other Borrowers of all of the other terms, covenants and conditions contained in the Financing Documents; and
(iv) all the other Obligations of the other Borrowers.
(b) The obligations and liabilities of each Borrower as a guarantor under this Section 2.3.11 shall be absolute and unconditional and joint and several, irrespective of the genuineness, validity, priority, regularity or enforceability of this Agreement, any of the Notes or any of the Financing Documents or any other circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Guarantor hereby acknowledges and Borrower in its capacity as a guarantor expressly agrees that each Guarantor’s liability hereunder is 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 with each other Guarantor obligations and liabilities of such Borrower as a guarantor hereunder:
(i) waive compliance with, or any defaults under, or grant any other Person(sindulgences under or with respect to any of the Financing Documents;
(ii) who 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 Revolving Credit 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 Revolving Credit 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 respects with the other Borrowers as if this Section 2.3.11 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 2.3.11, 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 2.3.11, 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 guarantee 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 Lender shall not be required to make any demand upon any of the Borrowers, or to sell the Collateral or otherwise pursue, enforce or exhaust its remedies against the 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 2.3.11, either in the same action, if any, brought against any one or more of 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 liabilities or obligations of any one or more of the Borrowers, any other guarantor or any obligor under any of the Financing Documents, arising out of, or by virtue of, any bankruptcy, 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 2.3.11, 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 2.3.11 in any manner whatsoever, and this Section 2.3.11 shall remain and continue in full force and effect. It is the intent and purpose of this Section 2.3.11 that each Borrower shall and does hereby waive all rights and benefits which might accrue to any other guarantor by reason of any such proceeding, and the Borrowers agree that they shall be liable for the full amount of the obligations and Indebtedness liabilities under this Section 2.3.11, regardless of, and in respect irrespective to, any modification, limitation or 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 2.3.11, 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 2.3.11 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 Note Purchase Agreementamount of any of or all of the indebtedness guaranteed by this Section 2.3.11;
(v) demand for observance, performance or enforcement of any of the terms or provisions of this Section 2.3.11, the Notes or any of the other Financing Documents;
(vi) all errors and omissions in connection with the Lender's administration of all indebtedness guaranteed by this Section 2.3.11, except errors and omissions resulting from the Lender's acts of willful misconduct or gross negligence;
(vii) any right or claim of right to cause a marshalling of the assets of any one or more of the other Borrowers;
(viii) any act or omission of the Lender which 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.
Appears in 1 contract
Sources: Financing and Security Agreement (Spacehab Inc \Wa\)
Guaranty. Each Section 32.01 Guarantor hereby irrevocably shall guaranty Tenant’s obligations under this Lease pursuant to the Guaranty Agreement substantially in the form of Exhibit F, executed and unconditionally guarantees delivered to Landlord as of the Commencement Date (the “Guaranty”). In the event Guarantor shall cease to own, directly or indirectly, substantially all of the assets of Tenant, Guarantor shall deliver a Replacement Guaranty pursuant to Section 32.02 below.
Section 32.02 Notwithstanding anything to the contrary contained herein, including, but not limited to, the fact that Forterra, Inc. is being set forth as the “Guarantor” on the Commencement Date of this Lease (Forterra, Inc., in such capacity, the “Original Guarantor”), if at any time during the Lease Term, any change in the organizational structure of Original Guarantor or any Affiliate thereof shall occur or be contemplated, including, but not limited to, resulting from either (i) the transfer, merger, or other change of -34- A&R MASTER LAND AND BUILDING LEASE ACTIVE 230595713 Control of Original Guarantor or any Affiliate thereof or (ii) any contemplated initial public offering of common stock in the United States involving Original Guarantor or any Affiliate thereof, then Tenant shall have the right to provide one or more replacement guarantors to replace the Original Guarantor with respect to all of the obligations of Original Guarantor in respect of any guaranty relating to this Lease (each holder such action, a “Replacement Guaranty”), subject to the due terms and punctual payment in full satisfaction of all of the following conditions precedent:
(a) Tenant has provided Landlord with not less than thirty (30) days prior written notice, which notice shall include the principal of, Make-Whole Amount, if any, name and interest on (including, without limitation, interest accruing after the filing jurisdiction 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 or by required or optional prepayment or by acceleration or otherwise), each proposed replacement guarantor;
(b) any other sums which may become due under the terms no Event of Default has occurred and provisions of the Notes or the Note Purchase Agreement and is continuing;
(c) the performance of all other obligations of proposed replacement guarantor is an Approved Replacement Guarantor (as hereinafter defined);
(d) each Approved Replacement Guarantor shall deliver to Landlord a guaranty (in the Company under the Note Purchase Agreement, (all such obligations described in clauses (aform attached as Exhibit F attached hereto), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt pursuant to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of which such Guaranteed Obligations when due, each Approved Replacement Guarantor agrees to pay be liable under such guaranty from and after the same when due to Commencement Date (and the holders entitled theretoOriginal Guarantor or any subsequent Approved Replacement Guarantor then being replaced shall be released from any further liability under the applicable guaranty) for all periods from and after the Commencement Date, without demand, presentment, protest or notice of any kind, in lawful money of the United States of America, and pursuant to which such Approved Replacement Guarantor shall be the requirements “Guarantor” for payment specified all purposes set forth in this Lease);
(e) Tenant shall submit to Landlord true, correct and complete copies of all documents reasonably requested by Landlord concerning the Notes organization and the Note Purchase Agreement. Each default in payment existence of any such Approved Replacement Guarantor;
(f) Tenant shall pay all of the Guaranteed Obligations shall give rise to a separate cause of action hereunder Landlord’s reasonable out-of-pocket costs and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued expenses in connection with the Note Purchase Agreement may Replacement Guaranty; and
(but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defendg) the provisions change in organizational structure giving rise to such Replacement Guaranty is for a valid business purpose and not principally to avoid any obligations of Guarantor under the Note Purchase Agreement, the Notes and this Guaranty. Notification of any proposed Replacement Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each Guarantor’s liability hereunder is joint and several with each other Guarantor and may be revoked by Tenant at any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note Purchase Agreementtime prior to such Replacement Guaranty having been consummated.
Appears in 1 contract
Guaranty. Each Guarantor hereby unconditionally and irrevocably and unconditionally guarantees to each holder the due Holders the due, prompt and punctual complete payment in full by the Issuer of (a) the principal of, Make-Whole Amountbreakage costs, 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)on, and any each other amounts amount due under, the Notes or the Note Purchase Agreement, when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under in accordance with the terms and provisions of the Notes or and the Note Purchase Agreement (the Notes and (c) the performance of 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 Company under the Note Purchase Agreement, Issuer thereunder (all such obligations described in clauses (aincluding any attorneys’ fees and expenses), (b) and (c) above are herein called being sometimes collectively hereinafter referred to as the “Guaranteed Obligations”). The guaranty in the preceding sentence This Guaranty is an absolute, present and continuing a guaranty of payment and not just of collectibility collectability and is in no way conditional conditioned or contingent upon any attempt to collect from the Company or any other guarantor of the Notes Issuer or upon any other actionevent, occurrence contingency or circumstance whatsoever. In If for any reason whatsoever the event that the Company Issuer shall fail so or be unable duly, punctually and fully to pay any of such Guaranteed Obligations amounts as and when due, each Guarantor agrees to pay the same when shall become due to the holders entitled theretoand payable, Guarantor, without demand, presentment, protest or notice of any kind, will forthwith pay or cause to be paid such amounts to the Holders under the terms of such Note Documents, in lawful money of the United States of AmericaStates, pursuant to at the requirements for payment place specified in the 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, or perform or comply with the Notes same or cause the same to be performed or complied with, together with interest (to the extent provided for under such Note Documents) on any amount due and owing from the Issuer. Guarantor, promptly after demand, will pay to the Holders the reasonable costs and expenses of collecting such amounts or otherwise enforcing this Guaranty, including, without limitation, the reasonable fees and expenses of counsel. Notwithstanding the foregoing, the right of recovery against Guarantor under this Guaranty Agreement. Each is limited to the extent it is judicially determined with respect to Guarantor hereby acknowledges and agrees that each entering into this Guaranty would violate Section 548 of the United States Bankruptcy Code or any comparable provisions of any state law, in which case Guarantor shall be liable under this Guaranty only for amounts aggregating up to the largest amount that would not render Guarantor’s liability obligations hereunder is joint and several with each other Guarantor and any other Person(s) who may guarantee the obligations and Indebtedness subject to avoidance under and in respect Section 548 of the Notes and the Note Purchase AgreementUnited States Bankruptcy Code or any comparable provisions of any state law.
Appears in 1 contract
Sources: Contribution Agreement (El Paso Pipeline Partners, L.P.)
Guaranty. Each The Guarantor hereby irrevocably unconditionally warrants, represents, covenants and unconditionally guarantees to each holder the due Lender, and punctual payment in full of its successors and assigns, that:
(a) Each Account of the principal ofBorrower included on a Borrowing Base Certificate furnished to the Lender pursuant to the Loan Agreement: (i) is genuine and enforceable in accordance with its terms and is in all respects what it purports to be; (ii) is not evidenced by a judgment, Make-Whole AmountInstrument, if anyDocument or Chattel Paper; (iii) arises out of a completed, bona fide sale and interest on delivery of goods or rendition of services by the Borrower in the ordinary course of its business and in accordance with the terms and conditions of all purchase orders, contracts or other documents relating thereto and forming a part of the contract between the Borrower and the Account Debtor; (includingiv) is for a liquidated amount maturing as stated in the invoice covering such sale; (v) is not subject to any defenses, without limitationsetoffs or counterclaims against such Account except those arising in the ordinary course of business; and (vi) is not invalid, interest accruing after the filing of any petition in bankruptcy, forged 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 or by required or optional prepayment or by acceleration or otherwise), fictitious;
(b) any other sums which may become due under Each Borrowing Base Certificate delivered to the terms Lender pursuant to the Loan Agreement is and provisions of the Notes or the Note Purchase Agreement shall be true and correct in all material respects as and when submitted;
(c) the performance of all other obligations All proceeds of the Company under Collateral required by the Note Purchase Agreement, (all such obligations described terms of the Loan Agreement to be held by the Borrower in clauses (a), (b) and (c) above are herein called trust for the “Guaranteed Obligations”). The guaranty Lender or as property of the Lender or to be remitted to the Lender will be delivered to the Lender in the preceding sentence is an absoluteidentical form as received by the Borrower, present or as otherwise requested by the Lender, immediately upon receipt but no later than the first (1st) Business Day following receipt thereof by the Borrower, and continuing guaranty of payment and the Borrower shall not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay use any of such Guaranteed Obligations when due, each proceeds or commingle such proceeds with any of its own funds;
(d) The Borrower is and will be the owner of the Collateral free and clear of all Liens except for Permitted Liens;
(e) Neither the Borrower nor the Guarantor agrees will cause or permit the Borrower to pay impede or interfere with the same when due normal collection and payment of all of the Accounts of the Borrower;
(f) All warranties and representations made by the Borrower to the holders entitled theretoLender, without demand, presentment, protest or notice of any kind, in lawful money of and all documents and schedules given by the United States of America, pursuant Borrower to the requirements for payment specified in Lender, relating to the Notes description, quantity, quality, condition and the Note Purchase Agreement. Each default in payment valuation of any of the Guaranteed Obligations shall give rise to a separate cause Accounts or the Inventory are and will be true and correct in all material respects;
(g) All of action hereunder the Collateral is and separate suits may will be brought hereunder insured 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Loan Agreement and the Ancillary Agreements pursuant to insurance policies in full compliance with the requirements thereof; and
(h) The Guarantor shall promptly inform the Lender in writing if he believes that any Borrowing Base Certificate, or any other schedule, report or writing delivered to the Lender pursuant to the Loan Agreement, the Notes is not true and this Guaranty Agreement. Each Guarantor hereby acknowledges accurate in all material respects as 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 Notes and the Note Purchase Agreement.when submitted
Appears in 1 contract
Sources: Guarantee of Validity of Collateral (Ventures National Inc)
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees If any guaranty of all or a portion of the Obligations (a “Guaranty”) ceases for any reason to each holder the due and punctual payment be in full force and effect, or any guarantor fails to perform or comply with any obligation or covenant under any Guaranty or a security agreement securing any Guaranty (collectively, the “Guaranty Documents”), or any event of (a) default occurs under any Guaranty Document or any guarantor revokes or purports to revoke a Guaranty, or any material misrepresentation or material misstatement exists now or hereafter in any warranty or representation set forth in any Guaranty Document or in any certificate delivered to Bank in connection with any Guaranty Document, or if any of the principal circumstances described in Sections 8.3 through 8.8 occur with respect to any guarantor or any guarantor dies or becomes subject to any criminal prosecution.
10. Exhibit D to the Agreement is replaced in its entirety with the Exhibit D attached hereto.
11. The Exhibit F attached hereto is incorporated in its entirety as the Exhibit F to the Agreement.
12. Borrower represents and warrants that the representations and warranties contained in the Agreement are true and correct as of the date of this Amendment, and that except as set forth above, no Event of Default has occurred and is continuing.
13. Unless otherwise defined, all initially capitalized terms in this Amendment shall be as defined in the Agreement. The Agreement, as amended hereby, shall be and remain in full force and effect in accordance with its respective terms and hereby is ratified and confirmed in all respects. Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, Make-Whole Amountor as an amendment of, if anyany right, and interest on (including, without limitation, interest accruing after the filing of any petition in bankruptcypower, or the commencement remedy 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 or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due Bank under the terms Agreement, as in effect prior to the date hereof. Borrower ratifies and provisions of reaffirms the Notes or the Note Purchase Agreement and (c) the performance continuing effectiveness of all other obligations agreements entered into in connection with the Agreement.
14. This Amendment may be executed in two or more counterparts, each of the Company under the Note Purchase Agreementwhich shall be deemed an original, (but all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoeverwhich together shall constitute one instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the Company shall fail so to pay any of party executing (or on whose behalf such Guaranteed Obligations when due, each Guarantor agrees to pay signature is executed) with the same when due force and effect as if such facsimile or “.pdf” signature page were an original hereof. Notwithstanding the foregoing, Borrower shall deliver all original signed documents no later than ten (10) Business Days following the date of execution.
15. As a condition to the holders entitled theretoeffectiveness of this Amendment, without demand, presentment, protest or notice of any kindBank shall have received, in lawful money form and substance satisfactory to Bank, the following:
(a) this Amendment, duly executed by Borrower;
(b) affirmation of the United States guaranty and subordination agreement executed by J▇▇▇▇ ▇. ▇▇▇▇▇▇;
(c) affirmation of America, pursuant to the requirements for subordination agreement executed by M▇▇▇▇▇▇ ▇▇▇▇▇▇ and G▇▇▇▇▇▇ Rebel;
(d) payment specified of an amendment fee in the Notes and the Note Purchase Agreement. Each default in payment amount 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 $15,000 plus reasonable Bank Expenses incurred in connection with this Amendment;
(e) Bank’s satisfactory due diligence calls with the Note Purchase Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions underwriters of the Note Purchase AgreementParent IPO; and such other documents, the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each Guarantor’s liability hereunder is joint and several with each completion of such other Guarantor and any other Person(s) who matters, as Bank may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note Purchase Agreementreasonably deem necessary or appropriate.
Appears in 1 contract
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) Each Grantor hereby, jointly and severally, unconditionally and irrevocably, guaranties to the principal ofSecured Parties and their respective successors, Make-Whole Amountindorsees, transferees and assigns, and to the Collateral Agent, for the benefit of the Secured Parties and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by each Debtor when due (whether at the stated maturity, by acceleration or otherwise) of the Secured Obligations to be paid or performed by such Debtor.
(b) Anything herein or in any other PA Financing Transaction Document to the contrary notwithstanding, the maximum liability of each Grantor hereunder and under the other PA Financing Transaction Documents shall in no event exceed the amount which can be validly guaranteed by such Grantor, if any, under applicable Debtor federal and interest on state laws relating to the insolvency of debtors (including, without limitation, interest accruing after giving effect to the filing right of any petition contribution established in bankruptcy, Section 2.2). Nothing in this Section 2.1(b) limits 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 or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and qualifies Section 3.1 hereof.
(c) Each Grantor agrees that the performance of all other obligations Secured Obligations may at any time and from time to time exceed the amount of the Company under liability of such Grantor hereunder without impairing the Note Purchase guaranty contained in this Section 2.1 or affecting the rights and remedies of the Secured Parties pursuant to this Agreement, .
(all such obligations described in clauses (a), (bd) and (c) above are herein called the “Guaranteed Obligations”). The guaranty contained in this Section 2.1 shall remain in full force and effect until the preceding sentence is an absoluteSecured Obligations have been paid in full, present the Commitments have been terminated or have expired and continuing guaranty of this Agreement has been terminated, notwithstanding that from time to time prior thereto any Debtor may be free from any Secured Obligations.
(e) No payment and not of collectibility and is in no way conditional or contingent upon made by any attempt to collect from the Company Debtor, any Grantor, any other guarantor or any other guarantor of Person or received or collected by the Notes or upon Secured Parties from any Debtor, any Grantor, any other action, occurrence guarantor or circumstance whatsoever. 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 other Person by virtue of any kind, action or proceeding or any set-off or appropriation or application at any time or from time to time in lawful money reduction of the United States of America, pursuant to the requirements for payment specified in the Notes and the Note Purchase Agreement. Each default or in payment of any of the Guaranteed Secured Obligations shall give rise be deemed to a separate cause modify, reduce, release or otherwise affect the liability 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 any Grantor pursuant to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel , which shall remain, notwithstanding any such payment, liable for the holders, taken as a whole, and, if reasonably required by remaining Secured Obligations up to the Required Holders, one local counsel maximum liability of such Grantor pursuant to this Agreement until the Secured Obligations have been paid in each applicable jurisdiction and/or one specialty counsel in each applicable specialty, for the holders, taken as a whole) incurred by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreementfull, the Notes Commitments have been terminated or have expired 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 Notes and the Note Purchase AgreementAgreement has terminated.
Appears in 1 contract
Sources: Security Agreement (First Citizens Bancshares Inc /De/)
Guaranty. Each Guarantor 3.1 The Guarantor, subject to the terms and conditions set forth herein, hereby irrevocably absolutely and unconditionally guarantees to each holder the due and punctual payment in full of (a) the principal offrom its Funds, 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 as well as any other amounts due underlegally available funds if the Funds are insufficient, to ODOT for its benefit and that of its successors and assigns the Notes when full and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions prompt payment of the Notes or Pataskala Guaranteed Amount. All payments by the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company Guarantor hereunder 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, be made in lawful money of the United States of AmericaAmerica and shall be made solely and exclusively from its Funds. In the event that this Agreement shall come into effect after the occurrence of an Event of Default, pursuant the moneys shall be immediately due and payable to ODOT by the requirements for Guarantor.
(i) Notwithstanding anything else contained herein or in any of the other ODOT Loan Agreements, in connection with its obligation to guaranty payment specified due from the District, the Guarantor:
a. Shall not be required to encumber or otherwise set aside any Funds until such time as the first payment from the District to ODOT is due under the State Loan Note (“the First Due Date”) and agrees to prioritize its obligation hereunder prior to budgeting any other debt repayment from the Funds; and
b. Starting on the First Due Date and during the remaining term of the State Loan Note, shall only be required to encumber Funds sufficient to pay the amount of the principal and interest due under the State Loan Note in the Notes fiscal year when such principal and interest is due which, in all events, shall be no more than the amount of principal and interest due under the State Loan Note in any given twelve (12) month period.
3.2 The obligations of Guarantor under Section 3.1 of this Agreement shall be absolute, unconditional, present and continuing guaranties of payment and performance from the Funds, and shall remain in full force and effect until provision has been made in accordance with the ODOT Loan Agreement and the ODOT Loan Note Purchase Agreementfor the payment of the entire sum due on the State Loan and the State Loan Note. Each default in payment This obligation shall not be affected, modified or impaired upon the happening from time to time of any event, whether or not with notice to or consent of ODOT or the Guarantor.
3.3 This Guaranty is an unconditional and absolute guaranty, irrespective of the validity, regularity or enforceability of any of the Guaranteed Obligations Loan Documents or any circumstances which might otherwise constitute a legal or equitable discharge or defense of the Guarantor. No counterclaim, set off, reduction of an obligation or defense of any kind which the Guarantor may have or assert against ODOT shall give rise affect, modify or impair the Guarantor’s obligations hereunder.
3.4 The Guarantor acknowledges that ODOT is making the loan to a separate cause the District of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued Loan Amount in connection with the Note Purchase Agreement may (but need not) make reference to reliance upon this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs the representations, warranties, covenants and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions agreements of the Note Purchase Guarantor made herein.
3.5 No amendment, change, modification, alteration or termination of this Agreement, the Notes and this Guaranty ODOT Loan Agreement. Each Guarantor hereby acknowledges and agrees that each , the ODOT Loan Note, or any other ODOT Loan Document shall in any way increase the burden of Guarantor’s liability hereunder obligations under this Article III unless the written consent of the Guarantor thereto has first been obtained.
3.6 No remedy conferred upon or given to ODOT under Article IV is joint intended to be exclusive of any other available remedy or remedies but each and several with each every such remedy shall be cumulative and shall be in addition to every other remedy under this Article III or now or hereafter existing at law or in equity or by statute. No delay or omission to exercise any right or power accruing upon any default, omission or failure of performance under this Article III shall impair any such right or power or shall be construed to be a waiver thereof, but any such right and power may be exercised from time to time and as often as may be deemed expedient. In order for ODOT to exercise any remedy, reserved or given to it in this Article III, it shall not be necessary to give any notice other than such notice as may be herein expressly required.
3.7 If any provision contained in this Article III should be breached by either party hereto and thereafter duly waived by the other party so empowered to act, such waiver shall be limited to the particular breach so waived and shall not be deemed to waive any other breach hereunder.
3.8 No waiver, amendment, release or modification of this Article III shall be established by conduct, custom or course of dealing but solely by instrument in writing duly executed by the Guarantor and ODOT.
3.9 The Guarantor, forthwith upon learning of any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes following, shall deliver written notice thereof to ODOT describing the same:
(i) the occurrence of an Event of Default or an event or circumstance which would constitute an Event of Default, but for the requirement that notice be given or time elapse or both; or
(ii) any action, suit or proceeding by or against the Guarantor at law or in equity, or before any governmental instrumentality or agency, instituted or threatened which, if adversely determined, would materially and adversely affect the Note Purchase Guarantor’s ability to perform under this Agreement.
3.10 The Guarantor shall not enter into any agreement containing any provision which would be violated or breached by the performance of the Guarantor’s obligations hereunder or under any instrument or document delivered or to be delivered by the Guarantor hereunder or in connection herewith. In addition, the Guarantor shall agree to subordinate any future pledge of the Funds if in any one calendar year the expected amount of the Funds generated when divided by the scheduled annual debt service of all outstanding obligations secured by the Funds are equal or less than 1.5.
Appears in 1 contract
Sources: Guaranty Agreement
Guaranty. Each The Guarantor hereby irrevocably and unconditionally guarantees to each holder holder, the due and punctual payment in full of (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), and any other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which that may become due under the terms and provisions of the Notes or Notes, the Note Purchase Agreement or any other instrument referred to therein) and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, Agreement (all such obligations described in clauses (a), (b) and through (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when dueObligations, each 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 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 The Guarantor agrees that the Notes issued in connection with the Note Purchase Agreement may (but need not) make reference to this Guaranty Agreement. Each The Guarantor agrees to pay all reasonable and documented costs to indemnify and expenses save each holder harmless from and against any damage, loss, cost or expense (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken fees) that such holder may incur or be subject to as a wholeconsequence, anddirect or indirect, if reasonably required of (x) any breach by the Required HoldersGuarantor, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialtyby any other the Guarantor or by the Company of any warranty, for covenant, term or condition in, or the holdersoccurrence of any default under, taken this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a wholeresult of any such breach or default, (y) incurred by any legal action commenced to challenge the Purchasers validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and each other holder of a Note in connection with (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each Notwithstanding any provision to the contrary contained herein or in the Note Agreement or the Notes, the obligations of the 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 subject to avoidance under the federal bankruptcy laws or any comparable provision of any applicable state law. The Guarantor hereby acknowledges and agrees that each the 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.
Appears in 1 contract
Sources: Guaranty Agreement (Evergy, Inc.)
Guaranty. Each Guarantor hereby absolutely, irrevocably and unconditionally guarantees the due, punctual and complete payment and performance of each and every obligation of Purchaser under the Limited Notice to each holder Proceed and work under and pursuant to the due and punctual payment in full of (a) Contracts occurring on or before the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after Financial Close for the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceedingProject, whether such obligation presently exists or not a claim for post-filing is created, incurred or post-petition interest is allowed in such proceeding)arising from time to time hereafter, all as and any other amounts due under, the Notes when and as the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due to be performed under the terms Limited Notice to Proceed and provisions of the Notes or Contracts, in all respects strictly in accordance with the Note Purchase Agreement terms, conditions and limitations contained in the Limited Notice to Proceed and the Contracts (c) the performance of all other obligations of the Company under the Note Purchase Agreementcollectively, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon agrees that if for any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company reason whatsoever Purchaser shall fail so or be unable to duly, punctually and fully pay or perform any of such Guaranteed Obligations Obligation as and when due, each Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kindshall, in lawful money the event of the United States a Purchaser Event of America, pursuant to the requirements for payment specified Default in the Notes and the Note Purchase Agreement. Each default in payment performance of any of the Guaranteed Obligations shall give rise by Purchaser under the Limited Notice to a separate Proceed and the Contracts, upon written demand of IFCO, with prior written notice to Purchaser, forthwith pay or perform or cause of action hereunder and separate suits may to 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 notperformed Exhibit 10.50(a) make reference to this Guaranty Agreement. Each Guarantor agrees to pay all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel Form 10-Q for the holdersQuarter Ended September 30, taken as a whole2008 filed by ADA-ES, andInc. (File No. 000-50216) on November 7, if reasonably required 2008 such Guaranteed Obligation, without regard to any exercise or non-exercise by the Required HoldersIFCO of any right, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialtyremedy, for the holders, taken as a whole) incurred by the Purchasers and each other holder of a Note in connection with enforcing power or defending (privilege under or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes Limited Notice to Proceed and the Note Purchase AgreementContracts against Purchaser. Without limiting the generality of the foregoing and notwithstanding anything herein to the contrary, a termination of the 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, if any, shall not impair, diminish, release or otherwise affect Guarantor’s obligations hereunder. This Guaranty is a guarantee of payment and performance and not of collection. All payments by Guarantor hereunder shall be made by deposit of immediately available funds to an account identified by IFCO. The Guarantor hereby guarantees that payments hereunder shall be made in U.S. dollars and in 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 Project or (ii) Purchaser or Guarantor shall have satisfactorily performed or fully discharged all of the Guaranteed Obligations; provided, however notwithstanding any provision in this Guaranty to the contrary, 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 1 contract
Guaranty. Each In order to induce the Lenders to extend credit to the Borrowers hereunder or to any of the Parent’s Subsidiaries under Hedging Agreements and Banking Services Agreements, and for other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged) each Guarantor hereby irrevocably and unconditionally guarantees guarantees, as a primary obligor and not merely as a surety, the payment when and as due, subject to each holder the notice provisions contained in this Article X, of the Obligations (other than the Obligations of the Parent) and the Specified Ancillary Obligations (collectively, the “Guaranteed Obligations”). Each Guarantor further agrees that the due and punctual payment of such Guaranteed Obligations may be extended or renewed, in full whole or in part, without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any such extension or renewal of any such Guaranteed Obligation. For the avoidance of doubt and notwithstanding any provision hereof to the contrary, (ai) the principal ofGuaranteed Obligations shall in no event be broader than the performance of the related Obligations or Specified Ancillary Obligations in accordance with their terms and (ii) nothing contained in this Article X shall affect or otherwise impair any rights (including rights of setoff or counterclaim) that the applicable Borrower or Subsidiary may have against any holder of Guaranteed Obligation under the applicable Hedging Agreement and/or Banking Services Agreement, Make-Whole Amountas applicable, if any, and interest on by reason of any action or failure to act of such holder thereunder (including, without limitation, interest accruing after any breach or default of such holder under the filing related Hedging Agreement or Banking Services Agreement). Each Guarantor waives presentment to, demand of payment from and protest to any Subsidiary of any petition of the Guaranteed Obligations, and also waives, other than as set forth in bankruptcythis Article X, notice of acceptance of its obligations and notice of protest for nonpayment. The obligations of each Guarantor under this Article X shall not be affected by: (a) the failure of the Administrative Agent, any Issuing Bank or any Lender (or any of its Affiliates) to assert any claim or demand or to enforce any right or remedy against any Subsidiary under the provisions of this Agreement, any other Loan Document, any Hedging Agreement, any Banking Services Agreement or otherwise; (b) any extension or renewal of any of the Guaranteed Obligations; (c) any rescission, waiver, amendment or modification of, or release from, any of the commencement terms or provisions of this Agreement, any other Loan Document, any Hedging Agreement, any Banking Services Agreement or any other agreement (other than to the extent provided for in any express, written release, amendment, modification or waiver with respect to any of this Article X made in accordance with Section 9.02); (d) any default, failure or delay, willful or otherwise, in the performance of any insolvencyof the Guaranteed Obligations; (e) the failure of the Administrative Agent (or any applicable Lender (or any of its Affiliates)) to take any steps to perfect and maintain any security interest in, reorganization or like proceedingto preserve any rights to, any security or collateral for the Guaranteed Obligations, if any; (f) any change in the corporate, partnership or other existence, structure or ownership of any Subsidiary or any other guarantor of any of the Guaranteed Obligations; (g) the enforceability or validity of the Guaranteed Obligations or any part thereof or the genuineness, enforceability or validity of any agreement relating thereto or with respect to any collateral securing the Guaranteed Obligations or any part thereof, or any other invalidity or unenforceability relating to or against any Subsidiary or any other guarantor of any of the Guaranteed Obligations, for any reason related to this Agreement, any other Loan Document, any Hedging Agreement, any Banking Services Agreement or any provision of applicable law, decree, order or regulation of any jurisdiction purporting to prohibit the payment by such Subsidiary or any other guarantor of the Guaranteed Obligations, of any of the Guaranteed Obligations or otherwise affecting any term of any of the Guaranteed Obligations; or (h) any other act, omission or delay to do any other act which may or might in any manner or to any extent vary the risk of such Guarantor or otherwise operate as a discharge of a guarantor as a matter of law or equity or which would impair or eliminate any right of such Guarantor to subrogation. Each Guarantor further agrees that its agreement hereunder constitutes a guarantee of payment when due (whether or not any bankruptcy or similar proceeding shall have stayed the accrual or collection of any of the Guaranteed Obligations or operated as a claim for post-filing or post-petition interest is allowed in such proceeding)discharge thereof) and not merely of collection, and waives any right to require that any resort be had by the Administrative Agent, any Issuing Bank or any Lender (or any of its Affiliates) to any balance of any deposit account or credit on the books of the Administrative Agent, any Issuing Bank or any Lender in favor of any Subsidiary or any other amounts due underPerson. The obligations of each Guarantor hereunder shall not be subject to any reduction, limitation, impairment or termination for any reason, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever, by reason of the invalidity, illegality or unenforceability of any of the Guaranteed Obligations, any impossibility in the performance of any of the Guaranteed Obligations or otherwise. Each Guarantor further agrees that its obligations hereunder shall constitute a continuing and irrevocable guarantee of all Guaranteed Obligations now or hereafter existing and shall continue to be effective or be reinstated, as the case may be, if at any time payment, or any part thereof, of any Guaranteed Obligation (including a payment effected through exercise of a right of setoff) is rescinded, or is or must otherwise be restored or returned by the Administrative Agent, the Notes Issuing Bank or any Lender (or any of its Affiliates) upon the insolvency, examinership, bankruptcy or reorganization of any Subsidiary or otherwise (including pursuant to any settlement entered into by a holder of Guaranteed Obligations in its discretion). In furtherance of the foregoing and not in limitation of any other right which the Administrative Agent, any Issuing Bank or any Lender (or any of its Affiliates) may have at law or in equity against any Guarantor by virtue hereof, upon the failure of any Subsidiary to pay any Guaranteed Obligation when and as the same shall become due and payable (due, whether at stated maturity or maturity, by required or optional acceleration, after notice of prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations when due, each Guarantor agrees hereby promises to pay and will, promptly but in any event within two (2) Business Days following receipt of written demand by the same when due Administrative Agent, any Issuing Bank or any Lender (or any of its Affiliates), forthwith pay, or cause to be paid, to the holders entitled theretoAdministrative Agent, without demand, presentment, protest any Issuing Bank or notice any Lender (or any of any kind, its Affiliates) in lawful money of the United States of America, pursuant cash an amount equal to the requirements for payment specified in the Notes and the Note Purchase Agreement. Each default in payment of any unpaid principal amount of the Guaranteed Obligations shall give rise to a separate cause of action hereunder then due, together with accrued and separate suits may be brought hereunder as each cause of action arisesunpaid interest thereon. Each Guarantor further 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 payment in respect of any Guaranteed Obligation shall be due in a currency other than Dollars and/or at a place of payment other than New York, Chicago or any other Eurocurrency Payment Office and if, by reason of any Change in Law, disruption of currency or foreign exchange markets, war or civil disturbance or other similar event, payment of such Guaranteed Obligation in such currency or at such place of payment shall be impossible or, in the Notes reasonable judgment of the Administrative Agent, any Issuing Bank or any Lender (or any of its Affiliates), disadvantageous to the Administrative Agent, any Issuing Bank or any Lender (or any of such Lender’s Affiliates) in any material respect, then, at the election of the Administrative Agent, such Guarantor shall make payment of such Guaranteed Obligation in Dollars (based upon the Dollar Amount of such Specified Ancillary Obligation on the date of payment) and/or in New York, Chicago or such other Eurocurrency Payment Office as is designated by the Administrative Agent or such Lender and, as a separate and independent obligation, shall indemnify the Note Purchase AgreementAdministrative Agent, any Issuing Bank and any Lender (and such Lender’s Affiliates), as applicable, against any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such alternative payment. Upon payment by any Guarantor of any sums as provided above, all rights of such Guarantor against any Subsidiary arising as a result thereof by way of right of subrogation or otherwise shall in all respects be subordinated and junior in right of payment to the prior indefeasible payment in full in cash of all the Guaranteed Obligations owed by such Subsidiary. Nothing shall discharge or satisfy the liability of any Guarantor hereunder except the full performance and payment in cash of the Guaranteed Obligations.
Appears in 1 contract
Sources: Credit Agreement (PENTAIR PLC)
Guaranty. Each Guarantor hereby guarantees and agrees to be personally liable for any and all sums payable under the Lease by Tenant and for the full performance and observance of each and every covenant and agreement of Tenant contained in the Lease (including all exhibits thereto) to the same extent as if Guarantor were the tenant under the Lease and had executed and delivered the Lease (including all exhibits attached thereto). Guarantor unconditionally and irrevocably and unconditionally guarantees that all sums stated in the Lease to each holder the due and punctual payment be payable by Tenant will be promptly paid in full when due in accordance with the Lease and that Tenant will perform and observe each and every covenant and agreement in the Lease required to be performed and observed by Tenant. This Guaranty is irrevocable, unconditional and absolute, and if for any reason any such sums shall not be paid promptly when due, Guarantor will promptly after notice thereof and within the time period set forth in the Lease for the making of payment of any such sums, pay the same to the person entitled thereto pursuant to the Lease regardless of (a) whether Landlord shall have taken any steps to enforce any rights against Tenant or any other person liable therefor to collect such sum or any part thereof, (b) the principal oftermination of the Lease as a result of the default of Tenant thereunder, Make-Whole Amountor (c) any other condition or contingency which would not exonerate Guarantor from liability under the Lease if it were the tenant thereunder. Guarantor also agrees to pay to Landlord such further amounts as shall be sufficient to cover the cost and expense of collecting such sums or any part thereof or of otherwise enforcing this Guaranty, 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 or by required or optional prepayment or by acceleration or otherwise), (b) any other sums which may become due under the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the Company under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”). The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed Obligations 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 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, 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 Notes and the Note Purchase Agreement' fees.
Appears in 1 contract
Guaranty. Each The Guarantor hereby fully, unconditionally and -------- irrevocably guarantees, as primary obligor and unconditionally guarantees to each holder not merely as a surety, on a senior unsecured basis (pari passu with all other senior unsecured indebtedness of the Guarantor), (a) the due and punctual payment in full performance and observance by the Facility Lessee of (a) each term, provision and condition binding upon or applicable to the principal of, Make-Whole Amount, if any, and interest on Facility Lessee under or pursuant to any of the Operative Documents (including, without limitation, interest accruing at the then applicable rate provided in the applicable Lease Indenture after the filing of any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, relating to the Facility Lessee, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding) (the "Performance Obligations"), and any other amounts due under(b) the due, the Notes punctual and full payment (when and as the same may become due and payable) of each amount that the Facility Lessee is or may become obligated to pay under or pursuant to any of the Operative Documents, in accordance with the terms thereof (the "Payment Obligations"), by acceleration or otherwise without offset or deduction. In the case of any failure by the Facility Lessee to perform or observe the Performance Obligations after notice thereof by any Guaranteed Party, the Guarantor agrees to cause such performance or observance to be done, and in the case of any failure by the Facility Lessee to make Payment Obligations as and when the same shall become due and payable (whether at stated maturity or by required or optional prepayment or by acceleration or otherwise), the Guarantor hereby agrees to make such payment (b) and, in addition, such further amounts, if any, as shall be sufficient to cover any other sums which may become due under and all costs and expenses, including reasonable legal fees, of collection and enforcement hereunder); provided, that nothing herein shall expand the terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other aforesaid obligations of the Company Guarantor beyond those of the Facility Lessee under the Note Purchase Agreement, (all such obligations described in clauses (a), (b) and (c) above are herein called the “Guaranteed Obligations”)Operative Documents. The guaranty in the preceding sentence is an absolute, present and continuing guaranty of payment and not of collectibility and is in no way conditional or contingent upon any attempt to collect from the Company or any other guarantor of the Notes or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of such Guaranteed All Performance 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 Payment Obligations are collectively referred to 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 all reasonable and documented costs and expenses (including reasonable and documented attorneys’ fees of one special counsel for as the holders, taken as a whole, and, if reasonably required by the Required 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 by the Purchasers and each other holder of a Note in connection with enforcing or defending (or determining whether or how to enforce or defend) the provisions of the Note Purchase Agreement, the Notes and this Guaranty Agreement. Each "Obligations." ----------- The Guarantor hereby acknowledges and agrees that each Guarantor’s liability hereunder is joint this Guaranty constitutes a continuing guaranty and several with each other shall remain in full force and effect until such time as all of the Obligations are finally paid, performed and observed in full. The Guarantor hereby further acknowledges and agrees that this Guaranty constitutes a guaranty of payment and performance when due and not of collection and waives any right to require that any resort be had by any Guaranteed Party against any other Person(s) who may guarantee the obligations and Indebtedness under and in respect obligor, to any of the Notes and security held for payment of the Note Purchase AgreementObligations or to any balance of any deposit account or credit on the books of any Guaranteed Party in favor of the Facility Lessee or any other person or against any guarantor under any other guarantee covering the Obligations.
Appears in 1 contract
Sources: Guaranty (Dynegy Danskammer LLC)