Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company. (b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount. (c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.
Appears in 3 contracts
Sources: Annual Report (Chart House Enterprises Inc), Subordinated Debt Agreement (Chart House Enterprises Inc), Subordinated Debt Agreement (Chart House Enterprises Inc)
Guaranty. The Guarantor hereby irrevocably and unconditionally guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Notes or the Note Agreement (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security other guarantor of the Notes, if any, or upon any other means of obtaining paymentaction, occurrence or circumstance whatsoever. Should In the event that the Company shall fail to pay any of such Guaranteed Obligations, the Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the United States of America, pursuant to the requirements for payment specified in the Notes and the Note Agreement. Each default in the payment or performance of any of the ObligationsGuaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. The Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement. The Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by the Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes or the Note Agreement, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Guaranty Agreement. Notwithstanding any provision to the contrary contained herein or in the Note Agreement or the Notes, the obligations of the Parent hereunder with respect Guarantor under this Guaranty Agreement, the Note Agreement and the Notes shall be limited to an aggregate amount equal to the largest amount that would not render such Obligations in default shall, upon demand by Holder, become immediately due and payable obligations subject to Holder, without demand avoidance under the federal bankruptcy laws or notice any comparable provision of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etcapplicable state law. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation Guarantor hereby acknowledges and agrees that the Guarantor’s liability hereunder is joint and several with any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) Notes and the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentAgreement.
Appears in 3 contracts
Sources: Note Purchase Agreement (Westar Energy Inc /Ks), Guaranty Agreement (Evergy, Inc.), Guaranty Agreement (Evergy, Inc.)
Guaranty. (a) Guaranty Guarantor hereby absolutely, irrevocably and unconditionally guarantees the due, punctual and complete payment and performance of Payment each and Performance. The Parent hereby guarantees ----------------------------------- every obligation of Purchaser under the Limited Notice to Holder Proceed and work under and pursuant to the full Contracts occurring on or before the Financial Close for the Project, whether such obligation presently exists or is created, incurred or arising from time to time hereafter, all as and punctual payment when due (whether at stated maturityrequired to be performed under the Limited Notice to Proceed and the Contracts, by required pre-paymentin all respects strictly in accordance with the terms, by acceleration or otherwise), as well as conditions and limitations contained in the performance, of all of Limited Notice to Proceed and the indebtedness and other amounts owing under this Note Contracts (collectively, the "“Guaranteed Obligations"”), including all such Obligations which would become due but and agrees that if for the operation of the automatic stay pursuant any reason whatsoever Purchaser shall fail or be unable to (S)362(a) of the Federal Bankruptcy Code duly, punctually and the operation of (S)(S)502(b) fully pay or perform any Guaranteed Obligation as and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolutewhen due, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default Guarantor shall, in the payment or event of a Purchaser Event of Default in performance of any of the ObligationsGuaranteed Obligations by Purchaser under the Limited Notice to Proceed and the Contracts, the obligations upon written demand of IFCO, with prior written notice to Purchaser, forthwith pay or perform or cause to be performed such Guaranteed Obligation, without regard to any exercise or non-exercise by IFCO of any right, remedy, power or privilege under or in respect of the Parent hereunder with respect Limited Notice to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty Proceed and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generallyContracts against Purchaser. Without limiting the generality of the foregoing, the Parent agrees foregoing and notwithstanding anything herein to the provisions contrary, a termination of any instrument evidencingthe Limited Notice to Proceed and the Contracts by IFCO for an Event of Default by Purchaser occurring on or before the date of the Financial Close for the Project, securing if any, shall not impair, diminish, release or otherwise executed in connection with any Obligation affect Guarantor’s obligations hereunder. This Guaranty is a guarantee of payment and agrees that the obligations performance and not of the Parent collection. All payments by Guarantor hereunder shall not be released or discharged, made by deposit of immediately available funds to an account identified by IFCO. The Guarantor hereby guarantees that payments hereunder shall be made in whole or U.S. Dollars and in part, or otherwise affected by the manner required for the relevant payment due from Purchaser under the Limited Notice to Proceed. This Guaranty shall continue in full force and effect until the earlier of (i) Financial Close for the failure of Holder to assert any claim Project or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation Purchaser or renewals of any Obligation; (iii) any change in the time, place Guarantor shall have satisfactorily performed or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of fully discharged all of the Guaranteed Obligations); provided, all of which may be done without notice however notwithstanding any provision in this Guaranty to the Parentcontrary, Guarantor shall have the full benefit of all defenses, setoffs, counterclaims, reductions, diminution or limitations of any Guaranteed Obligations available to Purchaser pursuant to or arising from the Limited Notice to Proceed and the Contracts or otherwise and Guarantor’s obligations and liability arising from this Guaranty shall be no greater than that of Purchaser under the Limited Notice to Proceed and the portions of the Contracts to be performed prior to the Financial Close for the Project.
Appears in 3 contracts
Sources: Multiple Hearth Furnace Contract (Ada-Es Inc), Multiple Hearth Furnace Contract (Ada-Es Inc), Multiple Hearth Furnace Contract (Ada-Es Inc)
Guaranty. Each Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as (b) any other sums which may become due under the performance, terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the indebtedness and other amounts owing Company under this the Note Purchase Agreement, (collectively, the "Obligations"all such obligations described in clauses (a), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(bb) and 506(b(c) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security other guarantor of the Notes or upon any other means of obtaining paymentaction, occurrence or circumstance whatsoever. Should In the event that the Company shall fail so to pay any of such Guaranteed Obligations when due, each Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the United States of America, pursuant to the requirements for payment specified in the Notes and the Note Purchase Agreement. Each default in the payment or performance of any of the Obligations, the obligations Guaranteed Obligations shall give rise to a separate cause of the Parent action hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder separate suits may be required by ▇▇▇▇▇▇ on any number brought hereunder as each cause of occasionsaction arises. All payments by Each Guarantor agrees that the Parent hereunder shall be made Notes issued in connection with the Note Purchase Agreement may (but need not) make reference to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etcthis Guaranty Agreement. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, Each Guarantor agrees to pay to Holder, on demand, all reasonable and documented costs and expenses (including court costs reasonable and reasonable legal expensesdocumented attorneys’ fees of one special counsel for the holders, including taken as a whole, and, if reasonably required by the allocated cost of staff counselRequired Holders, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialty, for the holders, taken as a whole) incurred or expended by Holder the Purchasers and each other holder of a Note in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, enforcing or defending (or determining whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted how to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(cenforce or defend) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencingthe Note Purchase Agreement, securing or otherwise executed in connection with any Obligation the Notes and this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that each Guarantor’s liability hereunder is joint and several with each other Guarantor and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) Notes and the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentPurchase Agreement.
Appears in 3 contracts
Sources: Note Purchase Agreement (STORE CAPITAL Corp), Subsidiary Guaranty Agreement (STORE CAPITAL Corp), Subsidiary Guaranty Agreement (STORE CAPITAL Corp)
Guaranty. (a) Guaranty Guarantor, upon the occurrence of Payment a Springing Recourse Event, hereby absolutely, irrevocably and Performance. The Parent hereby guarantees ----------------------------------- to Holder unconditionally guaranties the full due and punctual payment and performance when due (due, whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the following (collectively referred to as the “Guarantied Obligations”): (a) all indebtedness and obligations owing by the Borrower to any Lender, the Swingline Lender, the Issuing Lender or the Agent under or in connection with the Credit Agreement and any other Loan Document, including without limitation, the repayment of all principal of the Revolving Loans, Term Loans A, Term Loans B, Swingline Loans and the Reimbursement Obligations, and the payment of all interest, Fees, charges, attorneys’ fees and other amounts owing under this Note payable to any Lender or the Agent thereunder or in connection therewith; (collectivelyb) any and all extensions, the "Obligations")renewals, including all such Obligations which would become due but for the operation modifications, amendments or substitutions of the automatic stay pursuant to foregoing; (S)362(ac) of all expenses, including, without limitation, reasonable attorneys’ fees and disbursements, that are incurred by the Federal Bankruptcy Code Lenders and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default Agent in the payment or performance enforcement of any of the foregoing or any obligation of Guarantor hereunder; and (d) all other Obligations. For the purposes of this Guaranty, the obligations occurrence of any of the Parent hereunder events described in (1)-(3) below shall be a “Springing Recourse Event”:
(A) Guarantor fails to perform or comply with respect to any of the following terms (each, a “Guarantor Covenant Breach”):
(i) the Guarantor shall not, directly or indirectly, enter into or conduct any business other than in connection with the ownership, acquisition and disposition of general or limited partnership interests in the Borrower and the management of the business of the Borrower, and such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any natureactivities as are incidental thereto, all of which are expressly waived shall be solely in furtherance of the business of the Borrower;
(ii) the Guarantor shall not own any assets other than (A) equity interests (or rights, options or warrants in respect thereof) of the Borrower, (B) up to a one percent (1%) equity interest in any partnership or limited liability company at least ninety-nine percent (99%) of the equity of which is owned, directly or indirectly, by the ParentBorrower; (C) money that has been distributed to Guarantor by Borrower or a Subsidiary of Borrower described in clause (ii)(B) above in accordance with Section 10.2. Payments of the Credit Agreement that is held for ten (10) Business Days or less pending further distribution to equity holders of the Guarantor, (D) assets received by the Parent hereunder may Guarantor from third parties (including, without limitation, the proceeds from any Equity Issuance), that are held for ten (10) Business Days or less pending further contribution to Borrower, (E) such bank accounts or similar instruments (subject to the other terms hereof) as it deems necessary to carry out its responsibilities under the limited partnership agreement of the Borrower, and (F) other tangible and intangible assets that, taken as a whole, are de minimis in relation to the net assets of Borrower and its Subsidiaries (but which in no event shall include any real estate, cash, cash equivalents or other liquid assets in excess of $500,000 in the aggregate (except as permitted in clauses (ii)(C) and (D) above) or equity interests (other than equity interests permitted in clauses (ii)(A) and (B) above);
(iii) the Guarantor shall promptly contribute or otherwise downstream to the Borrower any net assets received by the Guarantor from third parties (including, without limitation, the proceeds from any Equity Issuance), subject to the terms of clause (ii)(D) above;
(iv) the Guarantor shall not merge or consolidate (except as permitted in the Credit Agreement), or dissolve, liquidate or otherwise wind up its business, affairs or assets;
(v) the Guarantor shall not guarantee, or otherwise be required by ▇or become obligated in respect of, any Indebtedness (which for the purposes hereof shall include any obligations under any Derivatives Contract but shall exclude (A) guarantees of obligations under any Derivatives Contracts in favor of Associated Bank National Association and any lender under the Prior Term Loan Agreement or Prior Existing Credit Agreement in place as of ▇▇▇▇▇ on ▇▇, ▇▇▇▇, (▇) any number Indebtedness described in clause (f) of occasions. All payments by the Parent hereunder definition of Indebtedness, (C) any liability pursuant to a Customary Nonrecourse Debt Guaranty until a claim is made with respect thereto (provided that for the purposes of this clause (v), the Guarantor shall not be made deemed to the Holder, have violated this covenant with respect to Indebtedness under a Customary Nonrecourse Debt Guaranty until a judgment is obtained with respect to claims under Customary Nonrecourse Debt Guaranties individually or in the manner aggregate of $30,000,000 or greater), and at (D) any liability pursuant to a springing guaranty on substantially the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, same terms as the principal obligor Springing Guaranty; and provided further that the Guarantor’s liability with respect to (x) Indebtedness of Borrower in place as of March 31, 2014 and (y) Indebtedness of Inland Diversified assumed by Borrower and that is existing debt of Inland Diversified as of July 1, 2014 and was not incurred as a part of or in anticipation of the merger of Inland Diversified with and into KRG Magellan, solely by virtue of the Guarantor being the general partner of Borrower and not as a guarantor onlyguarantor, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder shall be excluded from the time when foregoing provided such amounts become due until payment, whether before or after judgment, at the rate liability is not increased; and
(B) with respect to a Guarantor Covenant Breach of interest set forth any event described in (S)1 hereof1)(A)(i)-(iii) above, provided that if the passage of forty-five (45) days after the first to occur of either (i) Borrower or Guarantor becoming aware of such interest exceeds the maximum amount permitted to be paid --------- under applicable lawGuarantor Covenant Breach, then or (ii) Agent notifying Borrower in writing of any such interest shall be reduced to such maximum permitted amount.Guarantor Covenant Breach, or
(cC) Waivers by with respect to a Guarantor Covenant Breach of the Parent; ▇▇▇▇▇▇'s Freedom event described in clause (1)(A)(v) above, the passage of ten (10) Business Days (or forty-five (45) days if the aggregate Indebtedness for the purposes of clause (1)(A)(v) above is less than $10,000,000), after the first to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly occur of either (i) Borrower or Guarantor becoming aware of such Guarantor Covenant Breach, or (ii) Agent notifying Borrower in accordance with their respective terms, regardless writing of any lawsuch Guarantor Covenant Breach; or
(2) Borrower or Guarantor shall commence a voluntary case under the Bankruptcy Code of 1978, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptnessas amended, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity federal bankruptcy or any other Person primarily domestic or secondarily liable foreign laws relating to bankruptcy, insolvency, reorganization, winding-up, composition or adjustment of debts, in each case with respect to Borrower or Guarantor, whether now or hereinafter in effect (collectively, a “Bankruptcy Proceeding”); or
(3) Borrower or Guarantor or any of the Obligationsofficer or director thereof shall collude with, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed assist any party in connection with any Obligation such filing in a Bankruptcy Proceeding or solicit or cause to be solicited petitioning creditors for any involuntary petition against Borrower or Guarantor in any such Bankruptcy Proceeding from any party. Guarantor acknowledges and agrees that the obligations guaranty under this Guaranty of the Parent hereunder Guarantied Obligations shall not be released or discharged, in whole or in part, or otherwise affected by (i) automatically become fully effective upon the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals occurrence of any Obligation; (iii) any change in Springing Recourse Event and no other documentation or notice shall be required to evidence the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentsame.
Appears in 2 contracts
Sources: Credit Agreement (Kite Realty Group, L.P.), Springing Guaranty (Kite Realty Group, L.P.)
Guaranty. Each Guarantor hereby unconditionally and irrevocably guarantees to the Administrative Agent, each Lender, each Swing Line Lender, each L/C Issuer and each other Person from time to time holding or owed payment with respect to the Guaranteed Obligations (acollectively, the “Guarantee Beneficiaries”) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual prompt payment when due (due, whether at stated maturity, by required pre-paymentprepayment, by acceleration upon acceleration, demand or otherwise), as well as the performanceand at all times thereafter, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Guaranteed Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations terms contained in the Loan Documents. This Guaranty is a guaranty of payment and not of their collectability only performance and is in no way conditioned upon any requirement that Holder first attempt to collect any not merely a guaranty of the Obligations from the Company or resort to any collateral security or other means of obtaining paymentcollection. Should the Company default in the payment or performance of any of the ObligationsAs used herein, the obligations of the Parent hereunder with respect to such term “Guaranteed Obligations” means any and all existing and future Obligations in default shall, upon demand by Holder, become immediately due and which may be payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made Borrowers to the HolderGuarantee Beneficiaries under the Credit Agreement and any other Loan Document (and, in the manner each case, including all renewals, extensions, amendments, refinancings and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costsother modifications thereof and all costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs attorneys’ fees and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder any Guarantee Beneficiary in connection with the Obligationscollection or enforcement thereof (in each case, this guaranty and to the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted extent required to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generallyCredit Agreement)). Without limiting the generality of the foregoing, the Parent agrees Guaranteed Obligations shall include any such indebtedness, obligations, and liabilities which may be or hereafter become unenforceable or shall be an allowed or disallowed claim under any proceeding or case commenced by or against any Guarantor, any Borrower or any other guarantor under any Debtor Relief Law, and shall include interest that accrues after the commencement by or against any Borrower of any proceeding under any Debtor Relief Laws. Anything contained herein to the contrary notwithstanding, the obligations of any individual Guarantor hereunder at any time shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code (Title 11, United States Code) or any comparable provisions of any instrument evidencing, securing similar federal or otherwise executed in connection with any Obligation and agrees that state law. Without limiting the obligations generality of the Parent hereunder foregoing unconditional guarantee, for the avoidance of doubt, this Guaranty shall not in no manner be released or dischargedreleased, in whole or in part, discharged or otherwise affected or limited by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (iia) any extensionswaiver, compromisemodification or amendment of, refinancingor supplement to, consolidation or renewals of any Obligation; documentation governing the Guarantee Obligations, including the Credit Agreement and the other Loan Documents, (iiib) any change in the timecorporate existence, place structure or manner ownership of payment of (x) any of the Obligations or Borrower, any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note Guarantor or any other agreement evidencingguarantor of the Guaranteed Obligations or (y) any Guarantee Beneficiary, securing (c) the existence of any claim, set-off or otherwise executed other rights which any Guarantor may have at any time against any Borrower, any Guarantee Beneficiary or any other entity, whether in connection with the Loan Documents or with unrelated transactions; provided, that this clause (c) shall not prevent the assertion of such claim by separate suit or in a compulsory counterclaim, (d) any invalidity or unenforceability relating to or against any Borrower for any reason relating to the Loan Documents or any other provision of applicable law or regulation purporting to prohibit the Obligations made in accordance with the terms hereof; (iv) the additionpayment by any Borrower, substitution any Guarantor or release any other guarantor of any entity or other person primarily or secondarily liable for any Obligation; Guaranteed Obligations or (ve) any other act or omission which might in to act or delay of any manner kind by any Borrower, any Guarantee Beneficiary or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentperson.
Appears in 2 contracts
Sources: Credit Agreement (Celanese Corp), Credit Agreement (Celanese Corp)
Guaranty. (a) Guaranty of Payment The Guarantor, jointly and Performance. The Parent severally, hereby guarantees ----------------------------------- unconditionally and irrevocably guaranties to Holder the Lender the full payment and punctual payment performance, when due (whether at stated maturity, by required pre-paymentdue, by acceleration or otherwise), as well as the performance, of all indebtedness, liabilities, and obligations of Borrower to the indebtedness Lender of any kind and other amounts owing under this Note description (collectively, the "Obligations"), including all such Obligations which would become due but for “Indebtedness”) under and pursuant to the operation Note or any of the automatic stay pursuant to other documents evidencing or securing the Loan (S)362(a) collectively the “Loan Documents”). The guaranty of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty Guarantor as set forth in this section is an absolute, continuing, primary, and unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and collection. If a claim is in no way conditioned ever made upon any requirement that Holder first attempt to collect any of the Obligations from Lender for the Company repayment or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance recovery 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 amount or notice of any nature, all of which are expressly waived amounts received 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, Lender in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations Indebtedness and the Lender repays all or part of such amount by reason of (a) any judgment, decree, or order of any court or administrative body having jurisdiction over the Lender or any rescissionsof its property, waiversor (b) any settlement or compromise of any such claim effected by the Lender with any such claimant, compromiseincluding the Borrower, refinancingthen in such event the Guarantor agrees that any such judgment, consolidation decree, order, settlement, or compromise shall be binding upon the Guarantor, notwithstanding any revocation hereof or the cancellation of the Note or other amendments or modifications of instrument evidencing any of the terms Indebtedness, and the Guarantor shall be and remain obligated to the Lender hereunder for the amount so repaid or provisions 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 this the Lender’s (a) having recourse against Borrower on the Note, or (b) exercising any other rights available to it under the Note or any other agreement evidencingLoan Documents. The Guarantor on demand shall pay to the Lender in immediately available funds, securing or otherwise executed in connection with any lawful money of the Obligations made in accordance with the terms hereof; (iv) the additionUnited States of America, substitution any sum or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice sums due to the ParentLender hereunder.
Appears in 2 contracts
Sources: Loan Agreement (Roberts Realty Investors Inc), Guaranty (Roberts Realty Investors Inc)
Guaranty. (a) Guaranty of Payment The Guarantor hereby absolutely, unconditionally and Performance. The Parent hereby irrevocably guarantees ----------------------------------- to Holder the full and punctual prompt payment when due (due, whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performanceand at all times thereafter, of all principal, interest, fees and all other monetary obligations of the indebtedness and other amounts owing under this Note Trust owed to each of the Subordinate Certificate Holders relating to the Certificados Subordinados, howsoever created, arising or evidenced, whether direct or indirect, absolute or contingent, now or hereafter existing, or due or to become due, which arise out of or in connection with the Trust Agreement (collectively, the "Obligations"), including all such Obligations which would become due but for obligations being herein collectively called the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code“Guaranteed Obligations”). This Guaranty constitutes a guaranty is an absolute, unconditional and continuing guaranty by the Guarantor of the full and punctual payment and performance of all of the Obligations when due and not of their collectability only collection, and is in no way conditioned upon the Guarantor specifically agrees that it shall not be necessary or required that the Trustee or any requirement that Subordinate Certificate Holder first attempt or any other Person exercise any right, assert any claim or demand or enforce any remedy whatsoever against the Trustee (or any other Person) before or as a condition to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by Guarantor hereunder. In the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided event that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the ObligationsGuaranteed Obligations shall not be paid when due within any period provided for in the Certificados Subordinados, and all suretyship defenses generallythe Guarantor agrees to pay such Guaranteed Obligations to the corresponding Subordinate Certificate Holder within 30 (thirty) calendar days after delivery of a written demand by any such Subordinate Certificate Holder to the Guarantor. Without limiting the generality of the foregoing, upon any default on the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations Guaranteed Obligations, the Subordinate Certificate Holders may demand payment directly to the Guarantor, either prior to or concurrently with any rescissionsrequirement or lawsuit against, waiversor without bringing requirement or suit against, compromise, refinancing, consolidation the Trust.
(b) Any term or other amendments or modifications of any of the terms or provisions provision of this Note Guaranty or any other agreement evidencing, securing or otherwise transaction document executed in connection with any the Trust Agreement to the contrary notwithstanding, the aggregate maximum amount of the Guaranteed Obligations made for which the Guarantor shall be liable shall not exceed the maximum amount for which the Guarantor can be liable without rendering this Guaranty or any other transaction document executed in accordance connection with the terms hereof; Trust Agreement as it relates to the Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer.
(ivc) Any term or provision of this Guaranty or the additionTrust Agreement or any other transaction document executed in connection therewith to the contrary notwithstanding, substitution or release the aggregate maximum amount of any entity or other person primarily or secondarily the Guaranteed Obligations for which the Guarantor shall be liable for any Obligation; or with respect to the principal amount of the Certifcados Subordinados shall not exceed (vx) USD$19,000,000 (nineteen million Dollars) minus (y) any other act principal amounts of the Certificados Subordinados indefeasibly paid in cash to the extent the Certifcados Subordinados have been permanently reduced with respect to such payment, or omission which might such higher amount as the Guarantor shall have agreed to in any manner writing, provided, that the foregoing shall only limit Guarantor’s obligations for principal of the Certifcados Subordinados but shall not limit or impair the Guarantor’s obligation with respect to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentGuaranteed Obligation.
Appears in 2 contracts
Sources: Guaranty (Vitro Sa De Cv), Guaranty (Vitro Sa De Cv)
Guaranty. (a) Guaranty Subject to the provisions of Payment subsection 2.1(b), the Guarantor hereby, jointly and Performance. The Parent hereby severally, unconditionally and irrevocably, guarantees ----------------------------------- to Holder the full Agent and punctual the Guaranteed Creditors and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Borrower when due (whether at the stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and Borrower’s Obligations up to but not exceeding the operation of (S)(S)502(b) and 506(b) amount of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional loan obligations plus interest and continuing guaranty costs of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Companyenforcement.
(b) Parent's Agreement Anything herein or in any other Loan Document to Pay Enforcement Coststhe contrary notwithstanding, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum liability of the Guarantor hereunder and under the other Loan Documents shall in no event exceed the amount permitted to which can be paid --------- guaranteed by the Guarantor under applicable law, then such interest shall be reduced federal and state laws relating to such maximum permitted amountthe insolvency of debtors.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom The Guarantor further agrees to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of pay any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kindexpenses (including, without limitation, all defenses reasonable fees and disbursements of counsel) which may be available paid or incurred by the Agent or any Guaranteed Creditor in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or collecting, any or all of the Borrower’s Obligations and/or enforcing any rights with respect to, or collecting against, the Guarantor under this Guaranty. This Guaranty shall remain in full force and effect until the Borrower’s Obligations are paid in full, notwithstanding that from time to time prior thereto no amounts may be outstanding under the Credit Agreement.
(d) The Guarantor agrees that the Borrower’s Obligations may at any time and from time to time exceed the amount of the liability of the Guarantor hereunder without impairing this Guaranty or affecting the rights and remedies of the Agent or any Guaranteed Creditor hereunder.
(e) No payment or payments made by the Borrower, the Guarantor, any other guarantor or any other Person or received or collected by the Agent or any Guaranteed Creditor from the Borrower, the Guarantor, any other guarantor or any other Person by virtue of any valuation, stay, moratorium law action or other similar law now proceeding or hereafter any set-off or appropriation or application at any time or from time to time in effect, any right to require the marshalling reduction of assets or in payment of the Company Borrower’s Obligations shall be deemed to modify, reduce, release or any other entity or other Person primarily or secondarily liable with respect to any otherwise affect the liability of the ObligationsGuarantor hereunder which shall, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of notwithstanding any instrument evidencing, securing such payment or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent payments (other than payments made by the indefeasible payment Borrower or the Guarantor in full, in cash, of all respect of the Borrower’s Obligations or payments received or collected from the Guarantor in respect of the Borrower’s Obligations), all of which may be done without notice remain liable for the Borrower’s Obligations up to the Parentmaximum liability of the Guarantor hereunder until the Borrower’s Obligations are paid in full.
(f) The Guarantor agrees that whenever, at any time, or from time to time, it shall make any payment to the Agent or any Guaranteed Creditor on account of its liability hereunder, it will notify the Agent in writing that such payment is made under this Guaranty for such purpose.
Appears in 2 contracts
Sources: Guaranty (Resaca Exploitation, Inc.), Guaranty (Resaca Exploitation, Inc.)
Guaranty. The Guarantor does hereby absolutely and unconditionally, represent, warrant and guarantee to Lender that:
(a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- All Accounts from time to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration time reported to Lender as Eligible Accounts or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon otherwise listed or included on any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived Borrowing Base Certificate shall be genuine Accounts owned by the Parent. Payments by the Parent hereunder may Credit Parties and in all respects what they purport to be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holderand shall, in the manner case of Accounts, represent bona fide and at existing obligations of Account Debtors to the place of payment specified therefor for payments hereunder to be made by the CompanyCredit Parties.
(b) Parent's Agreement All reports, schedules, certificates, and other information from time to Pay Enforcement Coststime delivered or otherwise reported to Lender by Borrower, etc. The Parent ------------------------------------------------ further agreesincluding, as the principal obligor and not as a guarantor only, to pay to Holder, on demandwithout limitation, all reasonable costs financial statements, tax returns, and expenses (including court costs Borrowing Base Certificates and reasonable legal expenses, including the allocated cost of staff counsel) incurred all supporting information or expended by Holder documentation delivered in connection with the Obligationstherewith, this guaranty shall be bona fide, complete, correct, and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth accurate in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted all material respects and shall accurately and completely report all matters purported to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountcovered or reported thereby.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom Each Account from time to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect time identified to Lender in any jurisdiction affecting any Borrowing Base Certificate as an Eligible Account shall, as of the date of such terms or the rights of Holder with respect thereto. The Parent waives promptnessBorrowing Base Certificate, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made constitute an Eligible Account in accordance with the terms hereofof the Credit Agreement.
(d) The Guarantor may from time to time, sign and deliver reports (including, without limitation, those specifically mentioned above) or otherwise deliver any such information to Lender as Lender may request, and the Guarantor are duly authorized to deliver same to Lender on behalf of each Credit Party.
(e) All collections and proceeds of Eligible Accounts from time to time received by the Credit Parties, or any of its officers, employees, agents or other representatives, shall forthwith be delivered to Lender as required under the Credit Agreement.
(f) All Collateral: (i) will be owned by the Credit Parties and will be possessed by the Credit Parties or their agents, respectively and as applicable; (ivii) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or will not be subject to any extent vary lien or security interest except as permitted by Lender; and (iii) will be maintained only at the risk of locations designated in the Parent Credit Agreement or otherwise operate as a release or discharge of Security Agreement, unless the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentCredit Parties obtain Lender’s prior written consent.
Appears in 2 contracts
Sources: Senior Secured Revolving Credit Facility Agreement (Sunpeaks Ventures, Inc.), Senior Secured Revolving Credit Facility Agreement (Sunpeaks Ventures, Inc.)
Guaranty. (a) Guaranty of Payment To induce Lender to make the Term Loan, Guarantor hereby, jointly and Performance. The Parent hereby guarantees ----------------------------------- to Holder severally, absolutely, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, the full and punctual payment when due (due, whether at stated maturitymaturity or earlier, by required pre-paymentreason of acceleration, by acceleration mandatory prepayment or otherwise), as well as the performanceotherwise in accordance with this Agreement, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of Borrower whether existing on the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand date hereof or notice of any nature, all of which are expressly waived by hereinafter incurred or created (the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company“Guaranteed Obligations”).
(b) Parent's Agreement Guarantor hereby waives and agrees not to Pay Enforcement Costsassert any defense, etc. The Parent ------------------------------------------------ further agreesand hereby agrees that its obligations under this section are irrevocable, as the principal obligor absolute and unconditional and shall not be discharged as a guarantor onlyresult of or otherwise affected, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including other than indefeasible payment in full of the allocated cost of staff counsel) incurred or expended by Holder in connection with the Guaranteed Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom Guarantor hereby unconditionally and irrevocably waives and agrees not to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective termsassert any claim, regardless of defense, setoff or counterclaim based on diligence, promptness, presentment, requirements for any law, regulation demand or order now or hereafter in effect in any jurisdiction affecting notice hereunder including any of such terms the following: (a) any demand for payment or the rights performance and protest and notice of Holder with respect thereto. The Parent waives promptness, diligence, protest; (b) any notice of acceptance; (c) any presentment, demand, protest, protest or further notice of acceptance, notice or other requirements of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable kind with respect to any of the Obligations, Guaranteed Obligation (including any accrued but unpaid interest thereon) becoming immediately due and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation payable; and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (vd) any other act notice in respect of any Guaranteed Obligation or omission which might in any manner part thereof, and any defense arising by reason of any disability or to any extent vary other defense of Borrower. Until the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment Guaranteed Obligations have been indefeasibly paid in full, in cashGuarantor further unconditionally and irrevocably agrees not to enforce or otherwise exercise any right of subrogation or any right of reimbursement or contribution or similar right against Borrower or any Guarantor by reason of any Loan Document or any payment made thereunder. No obligation of any Guarantor hereunder shall be discharged other than by complete performance.
(d) Guarantor, of all of and by its acceptance this guaranty, Lender, hereby confirm that it is their intention that this Guaranty and the Obligations)Guaranteed Obligations not constitute a fraudulent transfer or conveyance under any applicable laws. To effectuate the foregoing intention, all of which may Lender and Guarantor hereby irrevocably agree that the Guaranteed Obligations shall be done without notice limited to the Parentmaximum amount as will result in the Guaranteed Obligations not constituting a fraudulent transfer or conveyance under any applicable laws.
Appears in 2 contracts
Sources: Credit Agreement (Rentech Nitrogen Partners, L.P.), Credit Agreement (Rentech Inc /Co/)
Guaranty. (a) Guaranty The Guarantor unconditionally and irrevocably guarantees (the “Guaranty”) in favour of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder 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, including the payment of the Purchase Price and other amounts under Article II and any payments for indemnification under Article IX (the “Guaranteed Obligations”). Upon the failure of any Buyer to pay any amounts due by it under Article II or Article IX when and as the same shall become due, Guarantor hereby promises to pay, and shall upon receipt of written demand by Sellers forthwith pay, to Sellers such amounts in lawful money of the United States. Sellers shall only deliver such written demand to the Guarantor, and 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 in accordance with the terms of this Agreement. The Guaranty is a guarantee of payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Companycollection.
(b) Parent's Agreement to Pay Enforcement CostsTo the fullest extent permitted by Law, etcthe 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 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 Guarantor waives promptness, diligence, notice of acceptance of this Guaranty and of the Guaranteed Obligations, presentment, demanddemand for payment, notice of non-performance, default, dishonor and protest, notice of acceptance, notice the incurrence of any Guaranteed Obligations incurred and all other notices of any kindkind (except for notices to be provided to the Buyers and the Guarantor in accordance with Section 10.1), 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 Buyers or any other entity person interested in the transactions contemplated by this Agreement and the Transaction Documents. The Guarantor 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 waivers set forth in this Section 5.16 are knowingly made in contemplation of such benefits. The obligations of the 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 (other Person primarily than defense of payment or secondarily liable with performance).
(c) Nothing contained in this Guaranty (including, for greater certainty, in Section 5.16(b) above) shall constitute or be construed as a waiver or release by the Guarantor of, and the Guarantor shall be entitled to the full benefit of, the defenses, rights and remedies that would have been available to any Buyer in respect of the 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 Sellers 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 Obligations, and all suretyship defenses generally. Without limiting the generality Buyers in respect of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Guaranteed Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Harman International Industries Inc /De/)
Guaranty. The Guarantor hereby irrevocably and unconditionally guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, interest and the Excess Leverage Fee, if any, on (including, without limitation, interest and the Excess Leverage Fee accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Note Agreement or any other instrument referred to therein, including (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity guarantor of the Notes or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting the generality Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. The Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement. The Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by the Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Guaranty Agreement. The Guarantor hereby acknowledges and agrees that the Guarantor’s liability hereunder is joint and several with any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 2 contracts
Sources: Note Purchase Agreement (Caseys General Stores Inc), Note Purchase Agreement (Caseys General Stores Inc)
Guaranty. (a) Guaranty of Payment Each Borrower hereby unconditionally and Performance. The Parent hereby irrevocably, guarantees ----------------------------------- to Holder Lender:
(i) the full due and punctual payment in full (and not merely the collectibility) by the other Borrowers of the Obligations, including unpaid and accrued interest thereon, in each case when due and payable, all according to the terms of this Agreement, the Notes and the other Financing Documents;
(whether ii) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of all other sums and charges which may at stated maturityany time be due and payable in accordance with this Agreement, the Notes or any of the other Financing Documents;
(iii) the due and punctual performance by required pre-payment, by acceleration or otherwise), as well as the performance, other Borrowers of all of the indebtedness other terms, covenants and conditions contained in the Financing Documents; and
(iv) all the other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the CompanyBorrowers.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor obligations and not liabilities of each Borrower as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, under this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest Section 2.4.10 shall be reduced to such maximum permitted amount.
(c) Waivers by absolute and unconditional and joint and several, irrespective of the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective termsgenuineness, regardless validity, priority, regularity or enforceability of any lawthis Agreement, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms the Notes or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company Financing Documents or any other entity circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Borrower in its capacity as a guarantor expressly agrees that Lender may, in its sole and absolute discretion, without notice to or further assent of such Borrower and without in any way releasing, affecting or in any way impairing the joint and several obligations and liabilities of such Borrower as a guarantor hereunder:
(i) waive compliance with, or any defaults under, or grant any other Person primarily indulgences under or secondarily liable with respect to any of the Financing Documents;
(ii) modify, amend, change or terminate any provisions of any of the Financing Documents;
(iii) grant extensions or renewals of or with respect to the Credit Facilities, the Notes or any of the other Financing Documents;
(iv) effect any release, subordination, compromise or settlement in connection with this Agreement, any of the Notes or any of the other Financing Documents;
(v) agree to the substitution, exchange, release or other disposition of the Collateral or any part thereof, or any other collateral for the Loan or to the subordination of any lien or security interest therein;
(vi) make advances for the purpose of performing any term, provision or covenant contained in this Agreement, any of the Notes or any of the other Financing Documents with respect to which Borrowers shall then be in default;
(vii) make future advances pursuant to this Agreement or any of the other Financing Documents;
(viii) assign, pledge, hypothecate or otherwise transfer the Commitments, the Obligations, the Notes, any of the other Financing Documents or any interest therein, all as and to the extent permitted by the provisions of this Agreement;
(ix) deal in all suretyship defenses generallyrespects with the other Borrowers as if this Section 2.4.10 were not in effect;
(x) effect any release, compromise or settlement with any of the other Borrowers, whether in their capacity as a Borrower or as a guarantor under this Section 2.4.10, or any other guarantor; and
(xi) provide debtor-in-possession financing or allow use of cash collateral in proceedings under the Bankruptcy Code, it being expressly agreed by all Borrowers that any such financing and/or use would be part of the Obligations.
(c) The obligations and liabilities of each Borrower, as guarantor under this Section 2.4.10, shall be primary, direct and immediate, shall not be subject to any counterclaim, recoupment, set off, reduction or defense based upon any claim that a Borrower may have against any one or more of the other Borrowers, Lender, and/or any other guarantor and shall not be conditional or contingent upon pursuit or enforcement by Lender of any remedies it may have against Borrowers with respect to this Agreement, the Notes or any of the other Financing Documents, whether pursuant to the terms thereof or by operation of law. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder Lender shall not be released required to make any demand upon any of Borrowers, or dischargedto sell the Collateral or otherwise pursue, enforce or exhaust its remedies against Borrowers or the Collateral either before, concurrently with or after pursuing or enforcing its rights and remedies hereunder. Any one or more successive or concurrent actions or proceedings may be brought against each Borrower under this Section 2.4.10, either in whole the same action, if any, brought against any one or more of Borrowers or in partseparate actions or proceedings, as often as Lender may deem expedient or otherwise affected by (i) advisable. Without limiting the failure of Holder to assert foregoing, it is specifically understood that any claim modification, limitation or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment discharge of any of the Obligations liabilities or obligations of any one or more of Borrowers, any other guarantor or any rescissionsobligor under any of the Financing Documents, waiversarising out of, compromiseor by virtue of, refinancingany bankruptcy, consolidation arrangement, reorganization or similar proceeding for relief of debtors under federal or state law initiated by or against any one or more of Borrowers, in their respective capacities as borrowers and guarantors under this Section 2.4.10, or under any of the Financing Documents shall not modify, limit, lessen, reduce, impair, discharge, or otherwise affect the liability of each Borrower under this Section 2.4.10 in any manner whatsoever, and this Section 2.4.10 shall remain and continue in full force and effect. It is the intent and purpose of this Section 2.4.10 that each Borrower shall and does hereby waive all rights and benefits which might accrue to any other amendments guarantor by reason of any such proceeding, and Borrowers agree that they shall be liable for the full amount of the obligations and liabilities under this Section 2.4.10, regardless of, and irrespective to, any modification, limitation or modifications discharge of the liability of any one or more of Borrowers, any other guarantor or any obligor under any of the Financing Documents, that may result from any such proceedings.
(d) Each Borrower, as guarantor under this Section 2.4.10, hereby unconditionally, jointly and severally, irrevocably and expressly waives:
(i) presentment and demand for payment of the Obligations and protest of non-payment;
(ii) notice of acceptance of this Section 2.4.10 and of presentment, demand and protest thereof;
(iii) notice of any default hereunder or under the Notes or any of the other Financing Documents and notice of all indulgences;
(iv) notice of any increase in the amount of any portion of or all of the indebtedness guaranteed by this Section 2.4.10;
(v) demand for observance, performance or enforcement of any of the terms or provisions of this Note Section 2.4.10, the Notes or any of the other agreement evidencing, securing or otherwise executed Financing Documents;
(vi) all errors and omissions in connection with Lender’s administration of all indebtedness guaranteed by this Section 2.4.10, except errors and omissions resulting from acts of bad faith;
(vii) any right or claim of right to cause a marshalling of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release assets of any entity one or more of the other person primarily or secondarily liable for any Obligation; or Borrowers;
(vviii) any other act or omission of Lender which might in any manner or to any extent vary changes the scope of the risk as guarantor hereunder; and
(ix) all other notices and demands otherwise required by law which Borrower may lawfully waive. Within ten (10) days following any request of the Parent Lender so to do, each Borrower will furnish Lender and such other persons as Lender may direct with a written certificate, duly acknowledged stating in detail whether or otherwise operate as a release not any credits, offsets or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice defenses exist with respect to the Parentthis Section 2.4.10.
Appears in 2 contracts
Sources: Financing and Security Agreement (Gp Strategies Corp), Financing and Security Agreement (Gp Strategies Corp)
Guaranty. The Guarantor hereby irrevocably and unconditionally guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise)) (b) any expenses, as well as indemnities and other sums which may become due to the performance, of all holders or the Collateral Agent under the terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Note Agreement, including the Collateral Agreement or any other Note Document (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity guarantor of the Notes or other Person primarily Guaranteed Obligations or secondarily liable with respect upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting the generality Guarantor agrees to pay the same when due to the Collateral Agent and/or holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, pursuant to the requirements for payment specified in the Notes, the Parent agrees to Note Agreement, the provisions of any instrument evidencing, securing or otherwise executed Collateral Agreement and the other Note Documents. Each default in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Guaranteed Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications shall give rise to a separate cause of any action hereunder and separate suits may be brought hereunder as each cause of action arises. The Guarantor agrees that the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement. The Guarantor hereby acknowledges and agrees that the Guarantor’s liability hereunder is joint and several with any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Obligations made in accordance with Notes, the terms hereof; (iv) the addition, substitution or release of any entity or Note Agreement and other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Documents.
Appears in 2 contracts
Sources: Guaranty Agreement (Global Water Resources, Inc.), Guaranty Agreement (Global Water Resources, Inc.)
Guaranty. In order to induce Lender to make the loan evidenced by this note, and as part of the consideration for making such loan, Guarantor does hereby pledge to Lender a first lien security interest on all of her personal properties and assets (a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- “Collaterals”), without limitation, up to Holder the time the loan evidenced by this note is paid in full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, Option is satisfied in full. Upon any default under the terms of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holdernote, in the manner and addition to Lender’s other remedies at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effectequity, Lender may take any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable such action as Lender deems advisable with respect to any of Guarantor’s personal properties or assets, including without limitation selling those pledged properties or assets at public or private sale on such terms as Lender deems appropriate; and Lender is authorized to act as Borrower’s attorney in fact to endorse or otherwise effect the Obligationstransfer of any of these personal properties or assets or other Collaterals referenced in this note. At any such sale, Lender may be the purchaser. Lender agrees to give Borrower only such notice of sale as is required by applicable law, and all suretyship defenses generallyin any event Borrower agrees that ten (10) days prior notice of a public or private sale is reasonable notice to Borrower. Without limiting Lender may determine the generality order of the foregoingLender’s pursuit of its remedies under this note. Borrower will, the Parent agrees at its expense, take or cause to the provisions of any instrument evidencingbe taken such other action and execute and deliver or cause to be executed and delivered such additional agreements, securing or otherwise executed documents and things as Lender may request in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencingthe Collaterals, securing or otherwise executed in connection with any of including without limitation the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release execution and filing of any entity or financing and other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might statements under the Uniform Commercial Code in effect in any manner applicable state, and Lender is hereby authorized to sign any such agreement or document or thing or statement on Borrower’s behalf and to file any such statement with or without Borrower’s signature. Notwithstanding the above, the Lender’s action should be limited to the extent vary that Lender can reasonably expect to recover the risk sum total of defaulted amount under this Note, including principal, interests and collection costs. In case that the Parent or otherwise operate as a release or discharge action of the Parent (other Lender generates more than the indefeasible payment in fullsum total of defaulted amount, in cash, of all of Lender should give the Obligations), all of which may be done without notice excess amount back to the ParentGuarantor in a reasonable time.
Appears in 2 contracts
Sources: Promissory Note Agreement, Secured Promissory Term Note Agreement (UC Asset LP)
Guaranty. (a) Guaranty The Company hereby unconditionally and irrevocably guarantees to the Administrative Agent, for the ratable benefit of Payment the Lenders and Performance. The Parent hereby guarantees ----------------------------------- to Holder their respective successors, indorsees, transferees and assigns, any Hedge Bank and any Cash Management Bank, the full prompt and punctual complete payment and performance when due (whether at the stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Guaranteed Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement The Company agrees that the Guaranteed Obligations may at any time and from time to Pay Enforcement Coststime exceed the amount of the liability of the Company hereunder that would exist in the absence of this Article 10 without impairing this Guarantee or affecting the rights and remedies of the Administrative Agent, etc. The Parent ------------------------------------------------ further agreesany Lender, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred any Hedge Bank or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountany Cash Management Bank hereunder.
(c) Waivers This Guarantee shall remain in full force and effect until all the Guaranteed Obligations (other than Guaranteed Obligations in respect of Hedge Agreements and Cash Management Obligations) shall have been satisfied by payment in full in immediately available funds, the Commitments have been terminated and either no Letter of Credit shall be outstanding or each outstanding Letter of Credit has been cash collateralized so that it is fully secured to the reasonable satisfaction of the Administrative Agent, notwithstanding that from time to time during the term of this Guarantee the European Borrower may be free from any Guaranteed Obligations.
(d) No payment made by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that Company, any other guarantor or any other Person or received or collected by the Obligations will be paid and performed strictly in accordance with their respective termsAdministrative Agent, regardless of any lawLender, regulation any Hedge Bank or order now any Cash Management Bank from the Company, any guarantor or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available Person by virtue of any valuationaction or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Guaranteed Obligations shall be deemed to modify, stayreduce, moratorium law release or other similar law now or hereafter in effect, any right to require otherwise affect the marshalling of assets liability of the Company or hereunder which shall, notwithstanding any such payment (other entity or other Person primarily or secondarily liable with than any payment made by the Company in respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Guaranteed Obligations or any rescissions, waivers, compromise, refinancing, consolidation payment received or other amendments or modifications of any collected from the Company in respect of the terms or provisions of this Note or any other agreement evidencingGuaranteed Obligations), securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily remain liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of Guaranteed Obligations until the Parent or otherwise operate as a release or discharge of the Parent Guaranteed Obligations (other than the indefeasible Guaranteed Obligations in respect of Hedge Agreements and Cash Management Obligations) shall have been satisfied by payment in fullfull in immediately available funds, in cash, the Commitments have been terminated and either no Letter of all Credit shall be outstanding or each outstanding Letter of Credit has been cash collateralized so that it is fully secured to the reasonable satisfaction of the Obligations), all of which may be done without notice to the ParentAdministrative Agent.
Appears in 2 contracts
Sources: Restatement Agreement (Constellation Brands, Inc.), Restatement Agreement (Constellation Brands, Inc.)
Guaranty. (a) Guaranty of Payment Each Guarantor jointly and Performance. The Parent severally hereby guarantees ----------------------------------- fully, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety, to each Holder the full and punctual payment when due (due, whether at stated maturity, by required pre-paymentacceleration, by acceleration redemption or otherwise), as well as the performance, of all the principal of, Make-Whole Amount, if any, and interest (including any interest accruing after the commencement of the indebtedness any proceeding in bankruptcy and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which any additional interest that would become due accrue but for the operation commencement of such proceeding) on the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code Notes and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, Issuer under the Note Purchase Agreement (all of which are expressly waived by the Parentforegoing being hereinafter collectively called the “Obligations”). Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made Each Guarantor further agrees (to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made extent permitted by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law extended or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or dischargedrenewed, in whole or in part, without notice or otherwise affected further assent from it, and that it shall remain bound under this Guaranty notwithstanding any extension or renewal of any Obligation.
(b) To the extent that any Guarantor shall make a payment hereunder (a “Payment”) which, taking into account all other Payments previously or concurrently made by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensionsother Guarantors, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change exceeds the amount which such Guarantor would otherwise have paid if each Guarantor had paid the aggregate obligations satisfied by such Payment in the time, place or manner of payment of any of same proportion as such Guarantor’s “Allocable Amount” (as hereinafter defined) in effect immediately prior to such Payment bore to the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; Aggregate Allocable Amount (ivas hereinafter defined) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations)Guarantors in effect immediately prior to the making of such Payment, then such Guarantor shall be entitled to contribution and indemnification from, and be reimbursed by, each of the other Guarantors for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Payment; provided that each Guarantor covenants and agrees that such right of contribution and indemnification and any and all claims of such Guarantor against any other Guarantor, any endorser or against any of their property shall be junior and subordinate in right of payment to the prior indefeasible final payment in cash in full of all of which may the Notes and satisfaction by the Issuer of its obligations under the Note Purchase Agreement and by the Guarantors of their obligations under this Guaranty and the Guarantors shall not take any action to enforce such right of contribution and indemnification, and the Guarantors shall not accept any payment in respect of such right of contribution and indemnification, until all of the Notes and all amounts payable by the Guarantors hereunder have indefeasibly been finally paid in cash in full and all of the obligations of the Issuer under the Note Purchase Agreement and of the Guarantors under this Guaranty have been satisfied As of any date of determination, (1) the “Allocable Amount” of any Guarantor shall be done without notice equal to the Parentmaximum amount which could then be claimed by the Holders under this Guaranty without rendering such claim voidable or avoidable under ▇▇▇▇▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ Bankruptcy Code (11 U.S.C. Sec. 101 et. seq.) or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law; and (2) the “Aggregate Allocable Amount” shall be equal to the sum of each Guarantor’s Allocable Amount. Back to Contents This clause (b) is intended only to define the relative rights of the Guarantors, and nothing set forth in this clause (b) is intended to or shall impair the obligations of the Guarantors, jointly and severally, to pay any amounts to the Holders as and when the same shall become due and payable in accordance herewith. Each Guarantor acknowledges that the rights of contribution and indemnification hereunder shall constitute an asset in favor of any Guarantor to which such contribution and indemnification is owing.
Appears in 2 contracts
Sources: Note Purchase Agreement (Brandywine Operating Partnership Lp /Pa), Note Purchase Agreement (Brandywine Realty Trust)
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Yield Maintenance Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Shelf Agreement or any other instrument referred to therein, including (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Shelf Agreement. Each default in payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued in connection with the Shelf Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Shelf Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Shelf Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentShelf Agreement.
Appears in 2 contracts
Sources: Note Purchase Agreement (Franklin Electric Co Inc), Note Purchase and Private Shelf Agreement (Franklin Electric Co Inc)
Guaranty. The Guarantor hereby absolutely, unconditionally and irrevocably guarantees, as primary obligor and not merely as surety,
(a) Guaranty the due and prompt payment by the Parent of:
(i) the principal of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder premium, if any, and interest at the full rate specified in the Note (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding (“Post-Petition Interest”)) on the Note (including Post-Petition Interest), when and punctual payment when due (as due, whether at stated scheduled maturity, by required pre-paymentdate set for prepayment, by acceleration or otherwise, and
(ii) all other monetary obligations of the Parent to the Creditor under the Note, when and as due, including fees, costs, expenses (including, without limitation, fees and expenses of counsel incurred by the Creditor in enforcing any rights under this Agreement or the Note), as well as contract causes of action and indemnities, whether primary, secondary, direct or indirect, absolute or contingent, fixed or otherwise (including monetary obligations incurred during the performancependency of any bankruptcy, insolvency, receivership or other similar proceeding, regardless of whether allowed or allowable in such proceeding);
(b) the due and prompt performance of all covenants, agreements, obligations and liabilities of the indebtedness and other amounts owing Parent under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation or in respect of the automatic stay pursuant to Note; and
(S)362(ac) of the Federal Bankruptcy Code due and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual prompt payment and performance of all covenants, agreements, obligations and liabilities of the Guarantor under or in respect of this Agreement and the Note, all such obligations in subsections (a) through (c), whether now or hereafter existing, being referred to collectively as the “Obligations.” The Guarantor further agrees that all or part of the Obligations may be increased, extended, substituted, amended, renewed or otherwise modified without notice to or consent from the Guarantor and such actions shall not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any affect the liability of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generallyGuarantor hereunder. Without limiting the generality of the foregoing, the Parent agrees Guarantor’s liability shall extend to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees all amounts that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any constitute part of the Obligations and would be owed by Parent to the Creditor under or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any in respect of the terms Note but for the fact that they are unenforceable or provisions not allowable due to the existence of this Note a bankruptcy, reorganization or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to similar proceeding involving the Parent.
Appears in 2 contracts
Sources: Exchange Agreement (Resonant Inc), Secured Subsidiary Guaranty (Resonant Inc)
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, Net Loss, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Note Agreement or any other instrument referred to therein, including (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in the applicable currency of the foregoingobligation, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 2 contracts
Sources: Multicurrency Note Purchase and Private Shelf Agreement (Idexx Laboratories Inc /De), Multicurrency Note Purchase and Private Shelf Agreement (Idexx Laboratories Inc /De)
Guaranty. (a) Guaranty Subject to Section 2.21 of Payment and Performance. The Parent the Credit Agreement, each Guarantor hereby guarantees ----------------------------------- to Holder the Lenders and the Administrative Agent the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, ) of all of the indebtedness obligations of the Borrower under the Credit Agreement and the other Loan Documents (including, but not limited to, the principal of the Loans advanced to the Borrower, all Reimbursement Obligations of the Borrower in respect of Letters of Credit, and all interest, fees, expenses, indemnities and other amounts owing payable by the Borrower under this Note (collectively, the "Obligations"Credit Agreement), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a§362(a) of the Federal Bankruptcy Code (Title 11, United States Code) and the operation of (S)(S)502(b) and 506(b§502(b) of the Federal Bankruptcy CodeCode (collectively, the “Guaranteed Obligations”). This guaranty Guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations such Guaranteed Obligations, and not of their collectability collectibility only and is in no way conditioned upon any requirement that Holder the Administrative Agent or any Lender first attempt to collect any of the Guaranteed Obligations from the Company Borrower or resort to any collateral security or other means of obtaining payment. Should the Company default in an Event of Default occur with respect to the payment or performance of any such Guaranteed Obligations of the ObligationsBorrower, the obligations of the Parent hereunder Guarantors under this Guaranty with respect to such Guaranteed Obligations in default shall, upon demand by Holderthe Administrative Agent, become immediately due and payable to Holderthe Administrative Agent, for the benefit of the Lenders and the Administrative Agent, without demand or notice of any nature, all of which are expressly waived by the Parenteach Guarantor. Payments by the Parent hereunder any Guarantor in respect of this Guaranty may be required by ▇▇▇▇▇▇ the Administrative Agent on any number of occasions. All payments by the Parent hereunder any Guarantor in respect of this Guaranty shall be made to the HolderAdministrative Agent, in the manner and at the place of payment specified therefor in the Credit Agreement, for payments the account of the Lenders and the Administrative Agent. Anything contained herein to the contrary notwithstanding, the obligations of each Guarantor hereunder at any time shall be limited to be made by an aggregate amount equal to the Company.
(b) Parent's Agreement largest amount that would not render its obligations hereunder subject to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not avoidance as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred fraudulent transfer or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- conveyance under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets §548 of the Company Federal Bankruptcy Code or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the comparable provisions of any instrument evidencing, securing similar federal or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentstate Law.
Appears in 2 contracts
Sources: Credit Agreement (White Mountains Insurance Group LTD), Credit Agreement (White Mountains Insurance Group LTD)
Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby Guarantor unconditionally guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by of any and all indebtedness and the satisfaction and performance when required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness covenants, obligations and other amounts owing under this Note liabilities (collectively, the "ObligationsObligations and Liabilities"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code Company under this Agreement. If any or all Obligations and the operation of (S)(S)502(b) and 506(b) Liabilities of the Federal Bankruptcy Code. This guaranty is an absoluteCompany hereunder are not timely satisfied by the Company, unconditional the Guarantor unconditionally promises to perform or cause to be performed such Obligations and continuing guaranty Liabilities to RMST or to pay to RMST, without deduction of any kind, in lawful money of the full United States, the amount of the Obligation and punctual Liability if the same shall be monetary in nature. The Guarantor acknowledges that a separate action or actions may be brought and prosecuted against him/her/them whether or not action is brought against the Company and whether or not the Company is joined in any such separate action or actions. The Guarantor authorizes RMST, without notice or demand (except as shall be required by applicable law providing the same cannot be waived), and without affecting or impairing the liability of the Guarantor under this Section, from time to time in accordance with this Agreement or by mutual agreement with the Company, to renew, compromise, extend, increase, accelerate or otherwise change the time for payment of, or otherwise change the terms of, any indebtedness of the Company or to modify the terms and time for performance of any or all Obligations and Liabilities under this Agreement. The Guarantor waives notice of dishonor, notice of acceptance, any right to require RMST to proceed against the Company, or to pursue any other remedy in RMST's power whatsoever. Until all of the Obligations and not Liabilities shall have been fully performed, and until all periods under applicable law to contest preferential or fraudulent payments have expired, Guarantor waives all rights of their collectability only contribution and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations subrogation from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.
Appears in 2 contracts
Sources: Mortgage Purchase Agreement (Homegold Financial Inc), Mortgage Purchase Agreement (Austin Funding Com Corp)
Guaranty. Each Loan Guarantor and any of its successors or assigns (aother than those that have delivered a separate Loan Guaranty) Guaranty hereby agrees that it is jointly and severally liable for, and, as primary obligor and not merely as surety, absolutely and unconditionally guarantees, to the extent permissible under the laws of Payment the country in which such Loan Guarantor is located or organized, to the Lenders and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual Agents (collectively, the “Guaranteed Parties”) the prompt payment when due (due, whether at stated maturity, by required pre-payment, by upon acceleration or otherwise), as well as the performanceand at all times thereafter, of the Secured Obligations and all costs and expenses including, without limitation, all court costs and attorneys’ and paralegals’ fees (including allocated costs of in-house counsel and paralegals) and expenses paid or incurred by the Agents and the Lenders in endeavoring to collect all or any part of the indebtedness and other amounts owing under this Note (collectivelySecured Obligations from, or in prosecuting any action against, the "Obligations")Borrower, including any other Loan Guarantor or any other guarantor of all such Obligations which would become due but for the operation or any part of the automatic stay pursuant Secured Obligations (such costs and expenses, together with the Secured Obligations, collectively the “Guaranteed Obligations”). Each Loan Guarantor further agrees that the Guaranteed Obligations may be extended or renewed in whole or in part without notice to (S)362(a) or further assent from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal. All terms of this Loan Guaranty apply to and may be enforced by or on behalf of any domestic or foreign branch or Affiliate of any Lender that extended any portion of the Federal Bankruptcy Code and the operation Guaranteed Obligations. If any payment by a Loan Guarantor or any discharge given by a Guaranteed Party (whether in respect of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of 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 Parent hereunder with respect to such Obligations in default shallliability of each Loan Guarantor shall continue as if the payment, upon demand by Holderdischarge, become immediately due avoidance or reduction had not occurred; 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 each Guaranteed Party shall be entitled to Pay Enforcement Costsrecover the value or amount of that security or payment from each Loan Guarantor, etcas if the payment, discharge, avoidance or reduction had not occurred. The Parent ------------------------------------------------ further agreesobligations 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 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 --------- permissible under applicable law, then such interest that it intends that this guarantee shall be reduced extend from time to such maximum permitted amount.
time to any (chowever fundamental) 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 termsvariation, regardless increase, extension or addition of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of Loan Documents and/or any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to amount made available under any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation Loan Documents for the purposes of or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release following: acquisitions of any entity or other person primarily or secondarily liable for any Obligationnature; or (v) increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other act indebtedness; making facilities available to new Borrower; any other variation or omission 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 manner 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 vary that it would result in this guarantee constituting unlawful financial assistance within the risk meaning of any equivalent and applicable provisions under the laws of the Parent or otherwise operate as a release or discharge jurisdiction of incorporation of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentrelevant Loan Guarantor.
Appears in 2 contracts
Sources: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)
Guaranty. (a) Guaranty of Payment Each Guarantor jointly and Performance. The Parent severally hereby unconditionally and irrevocably (i) guarantees ----------------------------------- to Holder the full and punctual prompt payment and performance when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all now existing and hereafter arising Obligations, and (ii) agrees to pay any and all costs, fees and expenses (including in-house and external attorneys’ fees and expenses (but, in the case of in-house counsels’ fees and expenses, without duplication of work performed by outside counsel)) reasonably incurred by Lender Parties in enforcing the indebtedness and other amounts owing under Guaranty set forth in this Note Article XIV (collectively, the "“Guaranteed Obligations"”), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty Guaranty is an absolute, unconditional and a continuing guaranty of the full and punctual payment and performance of all of the Obligations when due and not of their collectability only collection which shall not be discharged until all Guaranteed Obligations are indefeasibly paid in cash and performed in full and this Agreement is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Companyterminated.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor Each Guarantor jointly and not as a guarantor only, to pay to Holder, on demand, all reasonable costs severally hereby unconditionally and expenses irrevocably (including court costs and reasonable legal expenses, including the allocated cost of staff counseli) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- guarantees that the Guaranteed Obligations will be paid and performed strictly in accordance with their respective termsthe terms of the Loan Documents, regardless of any law, regulation or order Applicable Law now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder any Lender Party, and (ii) waives any rights and defenses it may now or hereafter have. The obligations of each Guarantor under this Article XIV are independent of the Guaranteed Obligations, and Agent may enforce the this Article XIV independently as to each Guarantor and/or each remedy, Collateral or other security Agent may at any time have, without first proceeding against or joining any other Person, Collateral or other security for the Guaranteed Obligations. A separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Credit Party or whether any other Credit Party is joined in any such action or actions. Lender Parties shall be under no obligation to marshal any assets in favor of any Guarantor or to proceed against or exhaust any Collateral before proceeding against any Guarantor. Each Guarantor agrees that it may be joined as a party defendant in any legal proceeding instituted by any Lender Party against any other Credit Party. The obligations of each Guarantor under this Article XIV shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any Credit Party to Lender Parties under any Loan Document but for, and shall be unaffected by, any of the following:
(i) lack of genuineness, validity, regularity or enforceability of any of the Obligations or Loan Document;
(ii) change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations, or any rescission, amendment or modification to, or waiver or compromise or acceleration of or any consent with respect to, any of the Guaranteed Obligations or any Loan Document or any other guaranty or the failure to obtain the consent or any Guarantor or other Person with respect thereto. The Parent waives promptness;
(iii) the existence, diligencevalue or condition of, presentmentor the failure by any Lender Party to perfect and maintain any Lien in, demandor to preserve any rights to, protestor the release or foreclosure of, notice any Collateral or other security for the Obligations;
(iv) the change, restructuring, dissolution or termination of acceptance, notice the structure or existence of any Obligations incurred and all other notices Credit Party or the insolvency or bankruptcy of any kind, all defenses which may be available Credit Party under any Debtor Relief Law;
(v) any action taken or omitted by virtue any Lender Party or any failure of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder Lender Party to assert any claim or demand or to enforce any right or remedy against the Company any Credit Party or any other entity guarantor; or
(vi) other action or circumstance (including, without limitation, any statute of limitations) or any existence of or reliance on any representation by Lender Parties that might otherwise constitute a defense available to, or a legal or equitable discharge of, any co-obligor, Credit Party or any other Person primarily guarantor or secondarily liable surety (other than actual indefeasible payment of the Obligations in full in cash).
(c) Each Guarantor acknowledges and agrees that (i) it will receive substantial direct and indirect benefits from the financing arrangements contemplated in this Agreement which would not have been available to the Credit Parties except upon the joint and several basis set forth herein and with the Guaranty provided in this Article XIV, and (ii) Lender Parties have made no representation or warranty with respect to any of the Obligations; (ii) any extensionsvalidity, compromisegenuineness, refinancingregularity, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment enforceability of any of the Loan Documents, and have no duty or responsibility whatsoever to any Guarantor in respect to the management and maintenance of the Guaranteed Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentCollateral.
Appears in 2 contracts
Sources: Credit Agreement (Fibernet Telecom Group Inc\), Credit Agreement (Fibernet Telecom Group Inc\)
Guaranty. The Guarantor hereby unconditionally and irrevocably guarantees to the Administrative Agent, each Lender, each Swing Line Lender, each L/C Issuer and each other Person from time to time holding or owed payment with respect to the Guaranteed Obligations (acollectively, the “Guarantee Beneficiaries”) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual prompt payment when due (due, whether at stated maturity, by required pre-paymentprepayment, by acceleration upon acceleration, demand or otherwise), as well as the performanceand at all times thereafter, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Guaranteed Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations terms contained in the Loan Documents. This Guaranty is a guaranty of payment and not of their collectability only performance and is in no way conditioned upon any requirement that Holder first attempt to collect any not merely a guaranty of the Obligations from the Company or resort to any collateral security or other means of obtaining paymentcollection. Should the Company default in the payment or performance of any of the ObligationsAs used herein, the obligations of the Parent hereunder with respect to such term “Guaranteed Obligations” means any and all existing and future Obligations in default shall, upon demand by Holder, become immediately due and which may be payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made Borrowers to the HolderGuarantee Beneficiaries under the Credit Agreement and any other Loan Document (and, in the manner each case, including all renewals, extensions, amendments, refinancings and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costsother modifications thereof and all costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs attorneys’ fees and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder any Guarantee Beneficiary in connection with the Obligationscollection or enforcement thereof (in each case, this guaranty and to the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted extent required to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generallyCredit Agreement)). Without limiting the generality of the foregoing, the Parent agrees to Guaranteed Obligations shall include any such indebtedness, obligations, and liabilities which may be or hereafter become unenforceable or shall be an allowed or disallowed claim under any proceeding or case commenced by or against the provisions Guarantor, any Borrower or any other guarantor of the Guaranteed Obligations under any Debtor Relief Law, and shall include interest that accrues after the commencement by or against any Borrower of any instrument evidencing, securing or otherwise executed in connection with proceeding under any Obligation and agrees that Debtor Relief Laws. Without limiting the obligations generality of the Parent hereunder foregoing unconditional guarantee, for the avoidance of doubt, this Guaranty shall not in no manner be released or dischargedreleased, in whole or in part, discharged or otherwise affected or limited by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (iia) any extensionswaiver, compromisemodification or amendment of, refinancingor supplement to, consolidation or renewals of any Obligation; documentation governing the Guarantee Obligations, including the Credit Agreement and the other Loan Documents, (iiib) any change in the timecorporate existence, place structure or manner ownership of payment (x) any Borrower or any guarantor of the Guaranteed Obligations or (y) any Guarantee Beneficiary, (c) the existence of any of the Obligations or any rescissionsclaim, waivers, compromise, refinancing, consolidation set-off or other amendments or modifications of rights which the Guarantor may have at any of the terms or provisions of this Note time against any Borrower, any Guarantee Beneficiary or any other agreement evidencingentity, securing or otherwise executed whether in connection with the Loan Documents or with unrelated transactions; provided, that this clause (c) shall not prevent the assertion of such claim by separate suit or in a compulsory counterclaim, (d) any invalidity or unenforceability relating to or against any Borrower for any reason relating to the Loan Documents or any other provision of applicable law or regulation purporting to prohibit the Obligations made in accordance with the terms hereof; (iv) the addition, substitution payment by any Borrower or release any other guarantor of any entity or other person primarily or secondarily liable for any Obligation; Guaranteed Obligations or (ve) any other act or omission which might in to act or delay of any manner kind by any Borrower, any Guarantee Beneficiary or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentperson.
Appears in 2 contracts
Sources: Credit Agreement (Celanese Corp), Credit Agreement (Celanese Corp)
Guaranty. (a) Guaranty of Payment Guarantor hereby absolutely, irrevocably and Performance. The Parent hereby unconditionally guarantees ----------------------------------- to Holder the full and punctual payment and performance when due of all obligations of Obligor now or hereafter existing under the Agreement (collectively, the "Guaranteed Obligations"), and agrees to pay any and all costs incurred by Counterparty in enforcing or attempting to enforce any rights under this Guaranty. This is a guaranty of payment and performance, not of collection. For purposes hereof, the phrase “when due” shall include when any such obligations of Obligor under the Agreement would be due or are required to be performed, whether at stated maturity, by required pre-paymentupon demand, by acceleration or otherwise), as well as in accordance with the performanceAgreement without giving effect to any stay, injunction or similar action resulting from a bankruptcy or similar proceeding or any order of all of the indebtedness and other amounts owing under this Note (collectivelyany event or governmental entity affecting Obligor, such maturity, demand or acceleration being deemed to have occurred upon, the "Obligations")taking effect of such stay, including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company injunction or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Companysimilar action.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as In the principal obligor and not as a guarantor only, event Obligor shall fail to pay any amount owed to Holderthe Counterparty under the Agreement, on demandGuarantor shall, all reasonable costs and expenses (including court costs and reasonable legal expensesupon written demand from Counterparty of such failure, including the allocated cost of staff counsel) incurred pay or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted cause to be paid --------- under applicable lawthe amount owed within ten (10) business days of receipt of such notice. In the event payment is not made in accordance with the foregoing sentence, then the amount owed shall bear interest from the date of such interest shall be reduced demand until receipt of such payment at a rate per annum equal to such maximum permitted amountthe Prime Rate, accruing monthly.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees Notwithstanding anything to the provisions contrary herein, Guarantor’s aggregate obligation to Counterparty hereunder is limited to [________] U.S Dollars ($___) (the “Maximum Guaranteed Amount”) (it being understood for purposes of calculating the Maximum Guaranteed Amount of Guarantor hereunder that any instrument evidencingpayment by Guarantor either directly or indirectly to Counterparty, securing pursuant to a demand made upon Guarantor by Counterparty or otherwise executed made by Guarantor pursuant to its obligations under this Guaranty including any indemnification obligations, shall reduce Guarantor’s maximum aggregate liability hereunder on a dollar-for-dollar basis), plus costs and expenses incurred by Guaranteed party in connection with any Obligation and agrees enforcing this Guaranty. EXCEPT AS EXPRESSLY PAYABLE BY OBLIGOR PURSUANT TO THE AGREEMENT, IN NO EVENT SHALL GUARANTOR BE SUBJECT TO ANY CONSEQUENTIAL, EXEMPLARY, EQUITABLE, LOSS OF PROFITS PUNITIVE OR TORT DAMAGES.
(d) Guarantor guarantees that the obligations of Guarantor under this Guaranty are independent of the Parent obligations of Obligor under the Agreement, and a separate action or actions may be brought against Guarantor to enforce this Guaranty, irrespective of whether any action is brought against Obligor or whether Obligor is joined in any such action or actions. Subject to the above notice requirement, Counterparty shall have the right to proceed first and directly against Guarantor under this Guaranty without first proceeding against Obligor or exhausting any other remedies which it may have.
(e) If any amount paid by Obligor in respect of the Guaranteed Obligations is required to be repaid by Counterparty pursuant to a court order in any bankruptcy or similar Legal Proceeding, Guarantor’s Obligations hereunder shall not be released restored as if such payment by Obligor had never been made, and Guarantor, to the extent permitted by applicable law or order, waives the benefit of any statute of limitations affecting the enforceability of this provision of the Guaranty.
(f) This Guaranty shall terminate upon the date that all of the Guaranteed Obligations are indefeasibly discharged. It is understood and agreed, however, that notwithstanding any such termination, this Guaranty shall continue in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable full force and effect with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the all Guaranteed Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or arising prior to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentsuch termination.
Appears in 2 contracts
Sources: Renewable Energy Purchase Agreement, Renewable Energy Purchase Agreement
Guaranty. (a) Guaranty of Payment Each Borrower hereby unconditionally and Performance. The Parent hereby irrevocably, guarantees ----------------------------------- to Holder the full Lender:
(i) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of the Obligations, including unpaid and accrued interest thereon, in each case when due and payable, all according to the terms of this Agreement, the Notes and the other Financing Documents;
(whether ii) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of all other sums and charges which may at stated maturityany time be due and payable in accordance with this Agreement, the Notes or any of the other Financing Documents;
(iii) the due and punctual performance by required pre-payment, by acceleration or otherwise), as well as the performance, other Borrowers of all of the indebtedness other terms, covenants and conditions contained in the Financing Documents; and
(iv) all the other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the CompanyBorrowers.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor obligations and not liabilities of each Borrower as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, under this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest Section 2.3.8 shall be reduced to such maximum permitted amount.
(c) Waivers by absolute and unconditional and joint and several, irrespective of the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective termsgenuineness, regardless validity, priority, regularity or enforceability of any lawthis Agreement, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms the Notes or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company Financing Documents or any other entity circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Borrower in its capacity as a guarantor expressly agrees that the Lender may, in its sole and absolute discretion, without notice to or further assent of such Borrower and without in any way releasing, affecting or in any way impairing the joint and several obligations and liabilities of such Borrower as a guarantor hereunder:
(i) waive compliance with, or any defaults under, or grant any other Person primarily indulgences under or secondarily liable with respect to any of the Financing Documents;
(ii) modify, amend, change or terminate any provisions of any of the Financing Documents;
(iii) grant extensions or renewals of or with respect to the Credit Facilities, the Notes or any of the other Financing Documents;
(iv) effect any release, subordination, compromise or settlement in connection with this Agreement, any of the Notes or any of the other Financing Documents;
(v) agree to the substitution, exchange, release or other disposition of the Collateral or any part thereof, or any other collateral for the Loan or to the subordination of any lien or security interest therein;
(vi) make advances for the purpose of performing any term, provision or covenant contained in this Agreement, any of the Notes or any of the other Financing Documents with respect to which the Borrowers shall then be in default;
(vii) make future advances pursuant to this Agreement or any of the other Financing Documents;
(viii) assign, pledge, hypothecate or otherwise transfer the Commitments, the Obligations, the Notes, any of the other Financing Documents or any interest therein, all as and to the extent permitted by the provisions of this Agreement;
(ix) deal in all suretyship defenses generallyrespects with the other Borrowers as if this Section 2.3.8 were not in effect;
(x) effect any release, compromise or settlement with any of the other Borrowers, whether in their capacity as a Borrower or as a guarantor under this Section 2.3.8, or any other guarantor; and
(xi) provide debtor-in-possession financing or allow use of cash collateral in proceedings under the Bankruptcy Code, it being expressly agreed by all Borrowers that any such financing and/or use would be part of the Obligations.
(c) The obligations and liabilities of each Borrower, as guarantor under this Section 2.3.8, shall be primary, direct and immediate, shall not be subject to any counterclaim, recoupment, set off, reduction or defense based upon any claim that a Borrower may have against any one or more of the other Borrowers, the Lender, and/or any other guarantor and shall not be conditional or contingent upon pursuit or enforcement by the Lender of any remedies it may have against the Borrowers with respect to this Agreement, the Notes or any of the other Financing Documents, whether pursuant to the terms thereof or by operation of law. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder Lender shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder required to assert make any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to upon any of the Obligations; (ii) any extensionsBorrowers, compromiseor to sell the Collateral or otherwise pursue, refinancingenforce or exhaust its remedies against the Borrowers or the Collateral either before, consolidation concurrently with or renewals of any Obligation; (iii) any change after pursuing or enforcing its rights and remedies hereunder. Any one or more successive or concurrent actions or proceedings may be brought against each Borrower under this Section 2.3.8, either in the timesame action, place if any, brought against any one or manner more of payment the Borrowers or in separate actions or proceedings, as often as the Lender may deem expedient or advisable. Without limiting the foregoing, it is specifically understood that any modification, limitation or discharge of any of the Obligations liabilities or obligations of any one or more of the Borrowers, any other guarantor or any rescissionsobligor under any of the Financing Documents, waiversarising out of, compromiseor by virtue of, refinancingany bankruptcy, consolidation arrangement, reorganization or similar proceeding for relief of debtors under federal or state law initiated by or against any one or more of the Borrowers, in their respective capacities as borrowers and guarantors under this Section 2.3.8, or under any of the Financing Documents shall not modify, limit, lessen, reduce, impair, discharge, or otherwise affect the liability of each Borrower under this Section 2.3.8 in any manner whatsoever, and this Section 2.3.8 shall remain and continue in full force and effect. It is the intent and purpose of this Section 2.3.8 that each Borrower shall and does hereby waive all rights and benefits which might accrue to any other amendments guarantor by reason of any such proceeding, and the Borrowers agree that they shall be liable for the full amount of the obligations and liabilities under this Section 2.3.8, regardless of, and irrespective to, any modification, limitation or modifications discharge of the liability of any one or more of the Borrowers, any other guarantor or any obligor under any of the Financing Documents, that may result from any such proceedings.
(d) Each Borrower, as guarantor under this Section 2.3.8, hereby unconditionally, jointly and severally, irrevocably and expressly waives:
(i) presentment and demand for payment of the Obligations and protest of non-payment;
(ii) notice of acceptance of this Section 2.3.8 and of presentment, demand and protest thereof;
(iii) notice of any default hereunder or under the Notes or any of the other Financing Documents and notice of all indulgences;
(iv) notice of any increase in the amount of any portion of or all of the indebtedness guaranteed by this Section 2.3.8;
(v) demand for observance, performance or enforcement of any of the terms or provisions of this Note Section 2.3.8, the Notes or any of the other agreement evidencing, securing or otherwise executed Financing Documents;
(vi) all errors and omissions in connection with the Lender's administration of all indebtedness guaranteed by this Section 2.3.8, except errors and omissions resulting from the Lender's gross negligence or willful misconduct;
(vii) any right or claim of right to cause a marshalling of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release assets of any entity one or more of the other person primarily or secondarily liable for any Obligation; or Borrowers;
(vviii) any other act or omission of the Lender which might in any manner or to any extent vary changes the scope of the risk as guarantor hereunder; and
(ix) all other notices and demands otherwise required by law which the Borrower may lawfully waive. Within ten (10) days following any request of the Parent Lender so to do, each Borrower will furnish the Lender and such other persons as the Lender may direct with a written certificate, duly acknowledged stating in detail whether or otherwise operate as a release not any credits, offsets or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice defenses exist with respect to the Parentthis Section 2.3.8.
Appears in 2 contracts
Sources: Financing Agreement (Argan Inc), Financing and Security Agreement (Argan Inc)
Guaranty. In order to induce to now or hereafter make advances, loans, extend its credit to or enter into security agreement with EVERGOOD PRODUCTS CORPORATION, PHOENIX LABORATORIES, INC. and GREAT EARTH DISTRIBUTION INC. (aindividually and collectively "Debtor") Guaranty and knowing that Trefoil will rely upon this guaranty, the undersigned and each of Payment them jointly and Performance. The Parent hereby guarantees ----------------------------------- to Holder severally guarantee the full due payment and punctual payment when due (whether at stated maturityperformance by said Debtor described in said financing agreement, by required pre-paymentor in any supplement thereto, by acceleration or otherwise)any other transaction or agreement, as well as the performance, due payment of all of the indebtedness and other amounts owing under this Note (collectivelyobligations which said Debtor may at any time owe to Trefoil, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code however created; and the operation of (S)(S)502(b) undersigned hereby indemnify Trefoil, and 506(b) of covenant to hold it harmless against all obligations, demands, losses or liabilities, by whomsoever asserted, suffered, incurred or paid by Trefoil as a result of, or in any way arising out of, or following, or consequential to transactions under the Federal Bankruptcy Codeaforesaid security agreement or any other agreement. This guaranty is an shall be absolute, unconditional continuing, unconditional, and continuing guaranty of unlimited. Trefoil shall be under no obligation to proceed first against the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company Debtor, or resort to against any collateral security which Trefoil may hold, before proceeding against the undersigned hereunder. The undersigned agree that any collateral held as security by Trefoil, whether under an agreement with the Debtor, or pursuant to this guaranty, may be sold at public or private sale, and the undersigned further agree that Trefoil shall have the right to bid at such sale. The undersigned agree to indemnify and save Trefoil harmless for any costs and expenses that Trefoil shall have the right to bid at such sale. The undersigned agree to indemnify and save Trefoil whether under agreement with the Debtor or the undersigned, and they further agree to pay all attorneys fees agreed to by the Debtor, and the reasonable attorneys fees incurred in connection with enforcement of this guaranty agreement, which the parties shall be a sum equal to 15% of the moneys due Trefoil upon placement of the claim with such attorney. The undersigned agree: that this guaranty shall not be impaired by any modification to which the parties to said security agreement may hereafter agree, nor by any modification, release or other means of obtaining payment. Should the Company default in the payment or performance alteration of any of the Obligationsobligations hereby guaranteed, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any naturesecurity therefor, or failure to perfect and security interest, to all of which are expressly waived by the Parent. Payments by the Parent undersigned hereby consent; that their liability hereunder is direct and unconditional and may be required enforced without requiring Trefoil first to any other right, remedy or security; and that this guaranty shall continue in force until Secured Party shall receive 30 days prior written notice by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made registered mail revoking it only as to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etcfuture transactions. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost undersigned waive: notice of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 acceptance hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, adverse change in Debtor's financial condition; the right to a jury trial in any action hereunder; presentment and protest of any instrument and notice thereof; notice of any Obligations incurred default; and all other notices to which they might otherwise be entitled. As security, they hereby assign to Trefoil all claims of any kindnature which they, all defenses which or any of them, may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter have against Debtor. All actions or proceedings arising directly or indirectly on account of this guaranty agreement shall be litigated only in effectcourts having situs within the State of New York and each guarantor for himself hereby consents to the jurisdiction of any Local, State or Federal Court located within the State of New York and each guarantor for himself waives personal service of any right and all process upon him and consents that all such service of process be made by certified mail, return receipt requested directed to require such guarantor at the marshalling address set forth below or the home address of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligationssuch guarantor, if different, and service so made shall be deemed complete three days after the same shall be posted. This guaranty, all suretyship defenses generally. Without limiting acts and transactions hereunder, and the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation rights and agrees that the obligations of the Parent hereunder parties hereto, shall be governed, construed and interpreted according to the laws of the State of New York. This guaranty cannot be changed or discharged orally, nor shall the same be terminated by death of any guarantor, in which event deceased guarantor's estate shall be bound by the obligations hereunder. Release of any guarantor, or the Debtor herein, shall not be released or discharged, in whole or in part, or otherwise affected by (i) affect the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any obligations hereunder of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentremaining guarantors.
Appears in 2 contracts
Sources: Security Agreement (Evergood Products Corp), Security Agreement (Evergood Products Corp)
Guaranty. Guarantor irrevocably and unconditionally guarantees to each Holder the due and punctual payment in full of all of the following (the “Guaranteed Obligations”): (a) Guaranty all Revolver Obligations, including all principal of, interest on (including interest accruing after the filing of Payment any petition in bankruptcy, or commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under or pursuant to, the full Loan Agreement and/or Revolver Note when and punctual payment when as due and payable (whether at stated maturity, by required pre-paymentor optional prepayment, by acceleration or otherwise); and (b) all fees, as well as the performanceexpenses, of all of the indebtedness indemnities and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations sums which would become due but for to the operation of the automatic stay Holder or Collateral Agent under or pursuant to (S)362(athe Revolver Note, Loan Agreement, Agency Agreement or any other Revolver Document. The Guarantor’s liability hereunder is joint and several with any other Person(s) of who may guarantee any Guaranteed Obligations. The guaranty in the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty preceding paragraph is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon conditional or contingent on any requirement that Holder first attempt to collect from any of the other Obligor any Guaranteed Obligations from or on any other action, occurrence or circumstance whatsoever. If the Company or resort fails to pay any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Guaranteed Obligations, Guarantor agrees to pay the obligations of same when due to the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to HolderCollateral Agent and/or Holder entitled thereto, without demand demand, presentment, protest or notice of any naturekind, all in lawful money of which are expressly waived by the ParentUnited States of America, pursuant to the requirements for payment specified in the relevant Revolver Documents. Payments by the Parent hereunder Each default in payment of any Guaranteed Obligations will give rise to a separate cause of action and separate suits may be required by ▇▇▇▇▇▇ on any number brought as each cause of occasionsaction arises. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and Guarantor agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by Revolver Note may (ibut need not) the failure of Holder make reference to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentGuaranty Agreement.
Appears in 2 contracts
Sources: Guaranty Agreement (Global Water Resources, Inc.), Guaranty Agreement (Global Water Resources, Inc.)
Guaranty. (a) Guaranty of Payment From and Performance. The Parent after the Effective Date, Guarantor hereby irrevocably guarantees ----------------------------------- to Holder the full full, unconditional, and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual prompt payment and performance of all of Licensee’s obligations and liabilities under the Obligations Agreement, including, without limitation, the payment of all rent and other charges due thereunder. Guarantor’s guarantee of such obligations and liabilities is subject to all of the provisions of the Agreement applicable thereto and all other matters affecting the enforcement thereof. This is a guaranty of payment and performance and not of their collectability only collection. The liability of Guarantor under this Guaranty shall be direct and is in no way immediate and not conditioned upon any requirement that Holder first attempt to collect any of on the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance pursuit of any remedy against Licensee or any other person or against any lien available to Licensor, its successors or assigns. Guarantor hereby waives any right to require that an action be brought against Licensee or any other person (provided, however, Licensor agrees to undertake reasonable collection efforts against Licensee before demanding payment from Guarantor under this Guaranty). In the event of a default by Licensee under the ObligationsAgreement, Licensor shall have the obligations right to enforce its rights, powers and remedies thereunder or hereunder in any order, and all rights, powers and remedies available to Licensor in such event shall be nonexclusive and cumulative of the Parent all other rights, powers and remedies provided thereunder or hereunder with respect or by law or in equity. This Guaranty shall be enforceable according to such Obligations in default shallits terms against Guarantor, upon demand by Holderhis or her heirs, become immediately due personal representatives, successors and payable to Holderassigns, without demand the necessity for any suit or proceedings against Licensee on Licensor’s part of any kind or nature whatsoever and without the necessity of any notice of non-payment, non-performance, or non-observance or of any naturenotice of acceptance of this Guaranty or of any other notice or demand to which Guarantor might otherwise be entitled, all of which are Guarantor hereby expressly waived waives. This Guaranty shall be a continuing Guaranty and the liability of Guarantor hereunder shall in no way be affected, modified, or diminished by reason of any assignment of the Parent. Payments Agreement by Licensee or any renewal, modification or extension of the Parent hereunder Agreement or by reason of any modification or waiver of or change in any of the terms, covenants, conditions or provisions of the Agreement by Licensor and Licensee, or by reason of any extension of time that may be required granted by ▇▇▇▇▇▇ on Licensor to Licensee, or by reason of any number dealings or transactions or matter or thing occurring between Licensor and Licensee, or by reason of occasions. All payments by any bankruptcy, insolvency, reorganization, arrangement, assignment for the Parent hereunder shall be made to the Holderbenefit of creditors, in the manner and at the place receivership or trusteeship affecting Licensee or any 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 paymentLicensee’s property, 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, not notice of any Obligations incurred and all other notices of any kind, all defenses which may same shall be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right given to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentGuarantor.
Appears in 2 contracts
Sources: Guaranty Agreement (Novo Integrated Sciences, Inc.), Guaranty Agreement (Novo Integrated Sciences, Inc.)
Guaranty. (a) Guaranty Each of Payment the Guarantors hereby, jointly and Performance. The Parent hereby severally, unconditionally and irrevocably, guarantees ----------------------------------- to Holder the full Collateral Agent, for the ratable benefit of the Secured Parties and punctual each of their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Company and the Guarantors when due (whether at the stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code Company Obligations and the operation performance by the Company of (S)(S)502(b) and 506(b) each of the Federal Bankruptcy Codecovenants and other obligations under the Indenture and the other Note Documents, including, without limitation, all Secured Obligations (each such Guarantor’s guarantee contained in this Article II, collectively, this “Guaranty”). This guaranty is an absolute, unconditional and continuing guaranty a guarantee of the full and punctual payment and performance not collection and the liability of all of the Obligations each Guarantor is primary and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Companysecondary.
(b) Parent's Agreement Anything herein or in any other Note Document to Pay Enforcement Coststhe contrary notwithstanding, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum liability of each Guarantor hereunder and under the other Note Documents shall in no event exceed the amount permitted to which can be paid --------- guaranteed by such Guarantor under applicable law, then such interest shall be reduced federal and state laws relating to such maximum permitted amountthe insolvency of debtors.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent Each Guarantor agrees ---------------------------------------------- that the Obligations will be paid may at any time and performed strictly in accordance with their respective terms, regardless from time to time exceed the amount of the liability of such Guarantor hereunder without impairing the Guaranty or affecting the rights and remedies of the Collateral Agent or any other Secured Party hereunder.
(d) Each Guarantor agrees that if the maturity of any lawof the Company Obligations is accelerated by bankruptcy or otherwise, regulation such maturity shall also be deemed accelerated for the purpose of this Guaranty without demand or order now or hereafter notice to such Guarantor. This Guaranty shall remain in full force and effect until Payment in any jurisdiction affecting Full of the Company Obligations shall have occurred.
(e) No payment made by the Company, any of such terms the Guarantors, any other guarantor or any other Person or received or collected by the rights Collateral Agent or any other Secured Party from the Company, any of Holder with respect thereto. The Parent waives promptnessthe Guarantors, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of guarantor or any kind, all defenses which may be available other Person by virtue of any valuationaction or proceeding or any set-off or appropriation or application at any time or from time to time in reduction of or in payment of the Secured Obligations shall be deemed to modify, stayreduce, moratorium law release or otherwise affect the liability of any Guarantor hereunder which shall, notwithstanding any such payment (other similar law now or hereafter than any payment made by such Guarantor in effect, any right to require the marshalling of assets respect of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation payment received or other amendments or modifications of any collected from such Guarantor in respect of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Company Obligations), all of which may be done without notice remain liable for the outstanding Secured Obligations up to the Parentmaximum liability of such Guarantor hereunder until Payment in Full of the Company Obligations shall have occurred.
Appears in 2 contracts
Sources: Second Lien Guaranty and Collateral Agreement (Ultra Petroleum Corp), Exchange Agreement (Ultra Petroleum Corp)
Guaranty. (a) Guaranty The Guarantors, jointly and severally, hereby unconditionally and irrevocably, guaranty to the Collateral Agent, for the benefit of Payment the Noteholders, the punctual payment, as and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturityand payable, by required pre-payment, by acceleration stated maturity or otherwise), as well as the performance, of all Obligations of the indebtedness Company from time to time owing by it in respect of the Securities Purchase Agreement, the Notes and the other Transaction Documents, including, without limitation, all interest, make-whole and other amounts owing under this Note (collectively, that accrues after the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance commencement of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets Insolvency Proceeding of the Company or any Guarantor, whether or not the payment of such interest, make-whole and/or other entity amounts are enforceable or are allowable in such Insolvency Proceeding, and all fees, interest, premiums, penalties, contract causes of actions, costs, commissions, expense reimbursements, indemnifications and all other Person primarily amounts due or secondarily liable with respect to become due under any of the Transaction Documents (all of the foregoing collectively being the “Guaranteed Obligations”), and agrees to pay any and all suretyship defenses generallyexpenses (including reasonable counsel fees and expenses) reasonably incurred by the Collateral Agent in enforcing any rights under this Guaranty. Without limiting the generality of the foregoing, each Guarantor’s liability hereunder shall extend to all amounts that constitute part of the Parent agrees Guaranteed Obligations and would be owed by the Company to the provisions Collateral Agent or any Noteholder under the Securities Purchase Agreement and the Notes but for the fact that they are unenforceable or not allowable due to the existence of an Insolvency Proceeding involving any instrument evidencingTransaction Party.
(b) Each Guarantor, securing and by its acceptance of this Guaranty, the Collateral Agent and each Noteholder, hereby confirms that it is the intention of all such Persons that this Guaranty and the Guaranteed Obligations of each Guarantor hereunder not constitute a fraudulent transfer or otherwise executed in connection with conveyance for purposes of the Bankruptcy Code, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any Obligation similar foreign, federal, provincial or state law to the extent applicable to this Guaranty and agrees the Guaranteed Obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Collateral Agent, the Noteholders and the Guarantors hereby irrevocably agree that the obligations Guaranteed Obligations of each Guarantor under this Guaranty at any time shall be limited to the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change maximum amount as will result in the time, place Guaranteed Obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentconveyance.
Appears in 2 contracts
Sources: Guaranty (Ascent Solar Technologies, Inc.), Guaranty (Ascent Solar Technologies, Inc.)
Guaranty. Except as otherwise provided for herein (a) Guaranty including under Section 3.14), each Note Guarantor hereby 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 the Collateral Agent (for the set-off of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the Secured Parties), the full and punctual payment prompt payment, when due (and as the same become due, whether at stated maturity, by required pre-payment, by upon acceleration or otherwise), as well as the performanceand at all times thereafter, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which amounts that would become due but for the operation of the automatic stay pursuant to (S)362(aunder Section 362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional 11 U.S.C. §362(a), together with any and continuing guaranty of all expenses which may be incurred by the full Collateral Agent and punctual payment and performance of all of the Obligations and not of their collectability only and is other Secured Parties in no way conditioned upon any requirement that Holder first attempt to collect collecting any of the Obligations that are reimbursable in accordance with Section 5(a) of the Note Purchase Agreement (collectively, the “Guaranteed Obligations”). Each Note Guarantor further agrees that all or any portion of the Guaranteed Obligations may be 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 Company or resort Guaranteed Obligations become due and payable hereunder, each Note Guarantor, unconditionally and irrevocably, promises to any collateral security or other means pay such Guaranteed Obligations to the Collateral Agent for the benefit of obtaining paymentthe Secured Parties, on demand. Should the Company default in Each Note Guarantor unconditionally and irrevocably guarantees the payment of any and all of the Guaranteed Obligations whether or performance not due or payable by the Issuer upon the occurrence of any of the Obligations, the obligations Bankruptcy Event of Default of the Parent hereunder with respect Note and thereafter irrevocably and unconditionally promises to pay such Guaranteed 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 Collateral Agent for 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 benefit of the Company or any other entity or other Person primarily or secondarily liable 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 Guarantor, until the release of the Obligationssuch Note Guarantor from its obligations hereunder in accordance with Section 3.14 hereof), and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees liabilities to the provisions of any instrument evidencing, securing which it applies or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of may apply under the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed hereof shall be conclusively presumed to have been created in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentreliance hereon.
Appears in 2 contracts
Sources: Note Guaranty (Li-Cycle Holdings Corp.), Note Guaranty (Li-Cycle Holdings Corp.)
Guaranty. Each Subsidiary Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Subsidiary Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make‑Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post‑filing or post‑petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Notes or the Note Agreement (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”) up to the Maximum Guaranteed Amount (as defined below). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect from any Obligor or any other Subsidiary Guarantor of the Notes (including, without limitation, any other Subsidiary Guarantor hereunder) or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of the Obligations from the Company or resort such Guaranteed Obligations, each Subsidiary Guarantor agrees to pay any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any unpaid amount of the Obligations, Guaranteed Obligations when due to the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holderholders entitled thereto, without demand demand, presentment, protest or notice of any naturekind, all in lawful money of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number United States of occasions. All payments by the Parent hereunder shall be made America, pursuant to the Holder, requirements for payment specified in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty Notes and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth Note Agreement. Each default in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Subsidiary Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Subsidiary Guaranty Agreement. Each Subsidiary Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including reasonable attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any rescissionsbreach by such Subsidiary Guarantor, waivers, compromise, refinancing, consolidation by any other Subsidiary Guarantor or other amendments or modifications by any Obligor of any warranty, covenant, term or condition in, or the occurrence of any default under, this Subsidiary Guaranty Agreement, the terms Notes, or the Note Agreement, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the validity or enforceability of this Subsidiary Guaranty Agreement, the Notes, or the Note Agreement, and (z) enforcing or defending the provisions of this Note or Subsidiary Guaranty Agreement. Each Subsidiary Guarantor hereby acknowledges and agrees that such Subsidiary Guarantor’s liability hereunder is joint and several with the other Subsidiary Guarantors, the Parent and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 2 contracts
Sources: Note Purchase and Guarantee Agreement (Paychex Inc), Note Purchase and Guarantee Agreement (Paychex Inc)
Guaranty. Each Subsidiary Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Subsidiary Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations"), including Note Agreement or any other instrument referred to therein (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity guarantor of the Notes (including, without limitation, any other Subsidiary Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Subsidiary Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Subsidiary Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Subsidiary Guaranty Agreement. Each Subsidiary Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Subsidiary Guarantor, by any other Subsidiary Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Subsidiary Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Subsidiary Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Subsidiary Guaranty Agreement. Each Subsidiary Guarantor hereby acknowledges and agrees that such Subsidiary Guarantor’s liability hereunder is joint and several with the other Subsidiary Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note Agreement. Notwithstanding the foregoing provisions or any other agreement evidencingprovision of this Subsidiary Guaranty Agreement, securing or otherwise executed in connection each Subsidiary Guarantor hereby agrees that if at any time the Guaranteed Obligations exceed the Maximum Guaranteed Amount determined as of such time with any of regard to such Subsidiary Guarantor, then this Subsidiary Guaranty Agreement shall be automatically amended to reduce the Guaranteed Obligations made in accordance with to the terms hereof; (iv) Maximum Guaranteed Amount. Such amendment shall not require the addition, substitution or release written consent of any entity Subsidiary Guarantor or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or holder and shall be deemed to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice have been automatically consented to the Parent.by each Subsidiary Guarantor and each
Appears in 2 contracts
Sources: Subsidiary Guaranty Agreement, Subsidiary Guaranty Agreement (Littelfuse Inc /De)
Guaranty. The Guarantor hereby irrevocably and unconditionally guarantees to each holder the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as (b) any other sums which may become due under the performance, terms and provisions of the Notes or the Note Purchase Agreement and (c) the performance of all other obligations of the indebtedness and other amounts owing Company under this the Note Purchase Agreement (collectively, the "Obligations"all such obligations described in clauses (a), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(bb) and 506(b(c) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security other guarantor of the Notes or upon any other means of obtaining paymentaction, occurrence or circumstance whatsoever. Should In the event that the Company shall fail so to pay any of such Guaranteed Obligations when due, the Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the United States of America, pursuant to the requirements for payment specified in the Notes and the Note Purchase Agreement. Each default in the payment or performance of any of the Obligations, the obligations Guaranteed Obligations shall give rise to a separate cause of the Parent action hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder separate suits may be required by ▇▇▇▇▇▇ on any number brought hereunder as each cause of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etcaction arises. The Parent ------------------------------------------------ further agrees, as Guarantor agrees that the principal obligor and not as a guarantor only, Notes issued in connection with the Note Purchase Agreement may (but need not) make reference to this Guaranty Agreement. The Guarantor agrees to pay to Holder, on demand, all reasonable and documented costs and expenses (including court costs reasonable and reasonable legal expensesdocumented attorneys’ fees of one special counsel for the holders, including taken as a whole, and, if reasonably required by the allocated cost of staff counselRequired Holders, one local counsel in each applicable jurisdiction and/or one specialty counsel in each applicable specialty, for the holders, taken as a whole) incurred or expended by Holder the holders of the Notes in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, enforcing or defending (or determining whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted how to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(cenforce or defend) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencingthe Note Purchase Agreement, securing or otherwise executed in connection with any Obligation the Notes and this Guaranty Agreement. The Guarantor hereby acknowledges and agrees that the Guarantor’s liability hereunder is joint and several with any other Person(s) who may guarantee the obligations and Debt under and in respect of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) Notes and the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentPurchase Agreement.
Appears in 2 contracts
Sources: Note Purchase Agreement (Kilroy Realty, L.P.), General Partner Guaranty Agreement (Kilroy Realty, L.P.)
Guaranty. (a) Guaranty In consideration of Payment Assignee's financing the purchase of the Equipment, each Guarantor hereby unconditionally, irrevocably and Performance. The Parent hereby guarantees ----------------------------------- to Holder the absolutely guarantees, jointly and severally, II re prompt and full payment and punctual payment performance when due (whether at stated maturity, by required pre-paymentdue, by acceleration or otherwise), as well as the performance, of all of Lessee's obligations under the indebtedness and other amounts owing under this Note Lease from time to time (collectively, the "ObligationsLease"), without offset or other deduction; consents, without notice, to all acts and omissions that would or might otherwise impair or affect this Guaranty or on which this Guaranty might be conditioned including all such Obligations which would become due but for the operation without limitation extension or modification of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absoluteLease, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company replacement or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance release of any of the ObligationsEquipment, and exercise or delay in exercise or waiver of any right or remedy of Assignee; and agrees to pay on demand each cost and expense of Assignee in enforcing this Guaranty including without limitation attorneys' fees (including infernal counsel's fees) and disbursements. This is a guaranty of payment not collection. The Assignee need not exhaust its remedies against any other obligor or guaranfor or resort to the Equipment before enforcing this Guaranty. Guarantor also waives presentment, demand for payment, protest, and notice of dishonor, protest and non-payment. if ny am unt paid Assignee un er the Lease must be returned pursuant to any bankruptcy law, this Guaranty shall be automatically reinstated until all Lessees obligations to ~ i II. Guaranty shall be governed by the internal laws of the Parent hereunder with respect to such Obligations state in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice which the Lessee is incorporated as of any nature, all of which are expressly waived by the Parentdate :f this Lease. Payments by the Parent hereunder may be required by Guarantor Signature ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ on any number Guarantor Signature ACKNOWLEDGMENT STATE OF ~ ~ ---~-- SS: COUNTY OF _____ - ~ _~. On the day of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner year 20_ , before me personally came __________ -. to me known and at the place of payment specified therefor for payments hereunder known to me to be made by the Company.
(bperson(s) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as described in and who executed the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligationsabove instrument, and all suretyship defenses generally. Without limiting ~he (they jointly and severally) acknowledged to me that _he (they) executed the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentsame.
Appears in 2 contracts
Sources: Equipment Lease (Compliance Systems Corp), Equipment Lease (Compliance Systems Corp)
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Notes or the Note Purchase Agreement (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect from the Issuer or any other guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other action, occurrence or circumstance whatsoever. In the event that the Issuer shall fail so to pay any of such Guaranteed Obligations when due, each Guarantor agrees to pay the Obligations from same when due to the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holderholders entitled thereto, without demand demand, presentment, protest or notice of any naturekind, all in lawful money of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number United States of occasions. All payments by the Parent hereunder shall be made America, pursuant to the Holder, requirements for payment specified in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty Notes and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth Note Purchase Agreement. Each default in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued in connection with the Note Purchase Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any loss, cost or expense (including attorneys’ fees) which such holder may incur as a result of (x) any rescissionsbreach by such Guarantor, waivers, compromise, refinancing, consolidation by any other Guarantor or other amendments by the Issuer or modifications the Parent of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the terms Notes or the Note Purchase Agreement, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the validity or enforceability of this Guaranty Agreement, the Notes or the Note Purchase Agreement and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Guaranty Agreement; provided that the foregoing indemnity obligations shall not expand the scope of the Guaranteed Obligations hereunder; provided further that, for the avoidance of doubt, the scope of costs and expenses covered by this sentence shall be no more than the costs and expenses reimbursable under the Note Purchase Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with each other Guarantor and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note Purchase Agreement. Notwithstanding the foregoing provisions or any other agreement evidencingprovision of this Guaranty Agreement, securing or otherwise executed in connection with if at any of time the Guaranteed Obligations made in accordance with exceed the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.Maximum Guaranteed Amount determined as
Appears in 2 contracts
Sources: Note Purchase Agreement (CoreSite Realty Corp), Note Purchase Agreement (CoreSite Realty Corp)
Guaranty. (a) Guaranty Each Guarantor, jointly and severally with each other Guarantor, unconditionally and irrevocably guarantees to the Holders the due, prompt and complete payment by the Company of Payment the principal of, Make-Whole Amount, if any, and Performance. The Parent hereby guarantees ----------------------------------- to Holder interest on, and each other amount due under, the full Notes or the Note Purchase Agreement, when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration declaration or otherwise) in accordance with the terms of the Notes and the Note Purchase Agreement (the Notes and the Note Purchase Agreement being sometimes hereinafter collectively referred to as the “Note Documents” and the amounts payable by the Company under the Note Documents (including any attorneys’ fees and expenses), as well being sometimes collectively hereinafter referred to as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "“Obligations"”), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty Guaranty is an absolute, unconditional and continuing a guaranty of the full and punctual payment and performance not just of all of the Obligations and not of their collectability only collectibility and is in no way conditioned or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to upon any collateral security other event, contingency or other means of obtaining paymentcircumstance whatsoever. Should If for any reason whatsoever the Company default in shall fail or be unable duly, punctually and fully to pay such amounts as and when the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, same shall become immediately due and payable to Holderpayable, each Guarantor, without demand demand, presentment, notice of acceleration, notice of intent to accelerate, protest or notice of any naturekind, all of which are expressly waived by the Parent. Payments by the Parent hereunder may will forthwith pay or cause to be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made paid such amounts to the HolderHolders under the terms of such Note Documents, in lawful money of the manner and United States, at the place of payment specified therefor for payments hereunder in the Note Purchase Agreement, or perform or comply with the same or cause the same to be made by performed or complied with, together with interest (to the extent provided for under such Note Documents) on any amount due and owing from the Company.
(b) Parent's Agreement to Pay Enforcement Costs. Each Guarantor, etc. The Parent ------------------------------------------------ further agreespromptly after demand, as the principal obligor and not as a guarantor only, to will pay to Holder, on demand, all the Holders the reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when collecting such amounts become due until paymentor otherwise enforcing this Guaranty, whether before or after judgmentincluding, at without limitation, the rate reasonable fees and expenses of interest set forth in (S)1 hereofcounsel. Notwithstanding the foregoing, provided that if such interest exceeds the maximum amount permitted right of recovery against each Guarantor under this Guaranty is limited to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable extent it is judicially determined with respect to any Guarantor that entering into this Guaranty would violate Section 548 of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the United States Bankruptcy Code or any comparable provisions of any instrument evidencingstate law, securing or otherwise executed in connection with any Obligation and agrees which case such Guarantor shall be liable under this Guaranty only for amounts aggregating up to the largest amount that the would not render such Guarantor’s obligations hereunder subject to avoidance under Section 548 of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company United States Bankruptcy Code or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals comparable provisions of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentstate law.
Appears in 2 contracts
Sources: Guaranty (Alliance Data Systems Corp), Note Purchase Agreement (Hunt J B Transport Services Inc)
Guaranty. The Guarantor unconditionally and irrevocably guarantees to the Company:
(a) Guaranty the due, prompt and complete payment by the Factor of Payment all amounts due under the Factoring Agreement, when and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all same shall become due and payable in accordance with the terms of the indebtedness Factoring Agreement, and
(b) the due, prompt and faithful performance of, and compliance with, all other undertakings of the Factor contained in the Factoring Agreement and in any other agreement or document executed by the Factor pursuant to the Factoring Agreement (the Factoring Agreement and other amounts owing under this Note (collectively, such agreements and documents being sometimes collectively hereinafter referred to as the "Operative Documents", and the amounts payable by the Factor under any of the Operative Documents, and all other obligations of the Factor thereunder, being sometimes collectively hereinafter referred to as the "Guaranteed Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing a guaranty of the full payment, performance and punctual payment and performance of all of the Obligations and not of their collectability only compliance and is in no way conditioned or contingent upon any requirement that Holder first attempt to collect from or enforce performance or compliance by the Factor or upon any of other event or condition whatsoever. If for any reason whatsoever the Obligations from Factor shall fail or be unable duly, punctually and fully to pay such amounts as and when the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, same shall become immediately due and payable or to Holderperform or comply with any other Guaranteed Obligation, without demand the Guarantor will forthwith pay or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may cause to be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made paid such amounts to the HolderCompany under the terms of the applicable Operative Document, in lawful money of the manner and United States, at the place of payment specified therefor for payments hereunder in such Operative Document, or perform or comply with such Guaranteed Obligations or cause such Guaranteed Obligations to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred performed or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereofcomplied with, together with interest (in the amounts and to the extent required of the Factor under such Operative Documents) on amounts recoverable hereunder any amount due and owing from the time when Factor. The Guarantor, promptly after demand, will reimburse the Company for all costs and expenses of collecting such amounts become due until paymentor otherwise enforcing this Agreement, whether before or after judgmentincluding, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoingwithout limitation, the Parent agrees to the provisions fees and expenses of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentcounsel.
Appears in 2 contracts
Sources: Interfactor and Subordination Agreement (Arbinet Thexchange Inc), Interfactor and Subordination Agreement (Arbinet Thexchange Inc)
Guaranty. Each Subsidiary Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Subsidiary Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, Modified Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations"), including Note Agreement or any other instrument referred to therein (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect from the Obligors or any other guarantor of the Notes (including, without limitation, any other Subsidiary Guarantor hereunder) or upon any other action, occurrence or circumstance whatsoever. In the event that the Company shall fail so to pay any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the such Guaranteed Obligations, each Subsidiary Guarantor agrees to pay the obligations of same when due to the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holderholders entitled thereto, without demand demand, presentment, protest or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holderkind, in the manner and at currency in which such Guaranteed Obligations are payable under the place of Note Agreement, pursuant to the requirements for payment specified therefor for payments hereunder to be made by in the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty Notes and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth Note Agreement. Each default in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Subsidiary Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Subsidiary Guaranty Agreement. Each Subsidiary Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Subsidiary Guarantor, by any other Subsidiary Guarantor or by the Obligors of any warranty, covenant, term or condition in, or the occurrence of any default under, this Subsidiary Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Subsidiary Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Subsidiary Guaranty Agreement. Each Subsidiary Guarantor hereby acknowledges and agrees that such Subsidiary Guarantor’s liability hereunder is joint and several with the other Subsidiary Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 2 contracts
Sources: Subsidiary Guaranty Agreement, Subsidiary Guaranty Agreement (Littelfuse Inc /De)
Guaranty. The Company shall use commercially reasonable efforts to have RCAP and RCS Capital Management, LLC (aand their respective subsidiaries) Guaranty of Payment released from their obligations as a Guarantor under the Credit Agreements and Performance. The Parent hereby guarantees ----------------------------------- to Holder under any other Loan Documents (as defined in the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(bCredit Agreements) and 506(bfor any Liens (as defined in the Credit Agreements) of on their property (other than the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect Class B Share) created by any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default Security Documents (as defined in the payment or performance of any Credit Agreements) to be automatically released, effective upon the Company’s repayment of the ObligationsRCAP Note in full. The parties are executing this Agreement on the date set forth in the introductory clause. RCAP HOLDINGS, 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 LLC By: /s/ W▇▇▇▇▇▇ 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; ▇▇▇▇▇▇ Name: W▇'s Freedom ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 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 (THE “SECURITIES ACT”), AND 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 subject to Actthe terms and 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 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 indebtedness evidenced 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 this Note (as defined below) shall constitute senior unsecured indebtedness of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentIssuer.
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 Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Shelf Agreement or any other instrument referred to therein, including (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Shelf Agreement. Each default in payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued in connection with the Shelf Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including reasonable attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, or the Guaranteed Obligations, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the validity or enforceability of this Guaranty Agreement, the Notes, the Shelf Agreement or any rescissions, waivers, compromise, refinancing, consolidation other instrument referred to therein and (z) enforcing or other amendments defending (or modifications of any of determining whether or how to enforce or defend) the terms or provisions of this Note or Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentShelf Agreement.
Appears in 2 contracts
Sources: Private Shelf Agreement (Graybar Electric Co Inc), Private Shelf Agreement (Graybar Electric Co Inc)
Guaranty. (a) Guaranty of Payment Each Borrower hereby unconditionally and Performance. The Parent hereby irrevocably, guarantees ----------------------------------- to Holder the full Lender:
(i) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of the Obligations, including unpaid and accrued interest thereon, in each case when due and payable, all according to the terms of this Agreement, the Notes and the other Financing Documents;
(whether ii) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of all other sums and charges which may at stated maturityany time be due and payable in accordance with this Agreement, the Notes or any of the other Financing Documents;
(iii) the due and punctual performance by required pre-payment, by acceleration or otherwise), as well as the performance, other Borrowers of all of the indebtedness other terms, covenants and conditions contained in the Financing Documents; and
(iv) all the other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the CompanyBorrowers.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor obligations and not liabilities of each Borrower as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, under this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest Section 2.5.5 shall be reduced to such maximum permitted amount.
(c) Waivers by absolute and unconditional and joint and several, irrespective of the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective termsgenuineness, regardless validity, priority, regularity or enforceability of any lawthis Agreement, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms the Notes or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company Financing Documents or any other entity circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Borrower in its capacity as a guarantor expressly agrees that the Lender may, in its sole and absolute discretion, without notice to or further assent of such Borrower and without in any way releasing, affecting or in any way impairing the joint and several obligations and liabilities of such Borrower as a guarantor hereunder:
(i) waive compliance with, or any defaults under, or grant any other Person primarily indulgences under or secondarily liable with respect to any of the Financing Documents;
(ii) modify, amend, change or terminate any provisions of any of the Financing Documents;
(iii) grant extensions or renewals of or with respect to the Credit Facilities, the Notes or any of the other Financing Documents;
(iv) effect any release, subordination, compromise or settlement in connection with this Agreement, any of the Notes or any of the other Financing Documents;
(v) agree to the substitution, exchange, release or other disposition of the Collateral or any part thereof, or any other collateral for the Loan or to the subordination of any lien or security interest therein;
(vi) make advances for the purpose of performing any term, provision or covenant contained in this Agreement, any of the Notes or any of the other Financing Documents with respect to which the Borrowers shall then be in default;
(vii) make future advances pursuant to the Financing Agreement or any of the other Financing Documents;
(viii) assign, pledge, hypothecate or otherwise transfer the Commitment, the Obligations, the Notes, any of the other Financing Documents or any interest therein, all as and to the extent permitted by the provisions of this Agreement;
(ix) deal in all suretyship defenses generallyrespects with the other Borrowers as if this Section 2.5.5 were not in effect;
(x) effect any release, compromise or settlement with any of the other Borrowers, whether in their capacity as a Borrower or as a guarantor under this Section 2.5.5, or any other guarantor; and
(xi) provide debtor-in-possession financing or allow use of cash collateral in proceedings under the Bankruptcy Code, it being expressly agreed by all Borrowers that any such financing and/or use would be part of the Obligations.
(c) The obligations and liabilities of each Borrower, as guarantor under this Section 2.5.5, shall be primary, direct and immediate, shall not be subject to any counterclaim, recoupment, set off, reduction or defense based upon any claim that a Borrower may have against any one or more of the other Borrowers, the Lender, and/or any other guarantor and shall not be conditional or contingent upon pursuit or enforcement by the Lender of any remedies it may have against the Borrowers with respect to this Agreement, the Notes or any of the other Financing Documents, whether pursuant to the terms thereof or by operation of law. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder Lender shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder required to assert make any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to upon any of the Obligations; (ii) any extensionsBorrowers, compromiseor to sell the Collateral or otherwise pursue, refinancingenforce or exhaust its remedies against the Borrowers or the Collateral either before, consolidation concurrently with or renewals of any Obligation; (iii) any change after pursuing or enforcing its rights and remedies hereunder. Any one or more successive or concurrent actions or proceedings may be brought against each Borrower under this Section 2.5.5, either in the timesame action, place if any, brought against any one or manner more of payment the Borrowers or in separate actions or proceedings, as often as the Lender may deem expedient or advisable. Without limiting the foregoing, it is specifically understood that any modification, limitation or discharge of any of the Obligations liabilities or obligations of any one or more of the Borrowers, any other guarantor or any rescissionsobligor under any of the Financing Documents, waiversarising out of, compromiseor by virtue of, refinancingany bankruptcy, consolidation arrangement, reorganization or similar proceeding for relief of debtors under federal or state law initiated by or against any one or more of the Borrowers, in their respective capacities as borrowers and guarantors under this Section 2.5.5, or under any of the Financing Documents shall not modify, limit, lessen, reduce, impair, discharge, or otherwise affect the liability of each Borrower under this Section 2.5.5 in any manner whatsoever, and this Section 2.5.5 shall remain and continue in full force and effect. It is the intent and purpose of this Section 2.5.5 that each Borrower shall and does hereby waive all rights and benefits which might accrue to any other amendments guarantor by reason of any such proceeding, and the Borrowers agree that they shall be liable for the full amount of the obligations and liabilities under this Section 2.5.5, regardless of, and irrespective to, any modification, limitation or modifications discharge of the liability of any one or more of the Borrowers, any other guarantor or any obligor under any of the Financing Documents, that may result from any such proceedings.
(d) Each Borrower, as guarantor under this Section 2.5.5, hereby unconditionally, jointly and severally, irrevocably and expressly waives:
(i) presentment and demand for payment of the Obligations and protest of non-payment;
(ii) notice of acceptance of this Section 2.5.5 and of presentment, demand and protest thereof;
(iii) notice of any default hereunder or under the Notes or any of the other Financing Documents and notice of all indulgences;
(iv) notice of any increase in the amount of any portion of or all of the indebtedness guaranteed by this Section 2.5.5;
(v) demand for observance, performance or enforcement of any of the terms or provisions of this Note Section 2.5.5, the Notes or any of the other agreement evidencing, securing or otherwise executed Financing Documents;
(vi) all errors and omissions in connection with the Lender’s administration of all indebtedness guaranteed by this Section 2.5.5, except errors and omissions resulting from acts of bad faith;
(vii) any right or claim of right to cause a marshalling of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release assets of any entity one or more of the other person primarily or secondarily liable for any Obligation; or Borrowers;
(vviii) any other act or omission of the Lender which might in any manner or to any extent vary changes the scope of the risk as guarantor hereunder; and
(ix) all other notices and demands otherwise required by law which the Borrower may lawfully waive. Within ten (10) days following any request of the Parent Lender so to do, each Borrower will furnish the Lender and such other persons as the Lender may direct with a written certificate, duly acknowledged stating in detail whether or otherwise operate as a release not any credits, offsets or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice defenses exist with respect to the Parentthis Section 2.5.5.
Appears in 2 contracts
Sources: Financing and Security Agreement (Tvi Corp), Financing and Security Agreement (Tvi Corp)
Guaranty. To induce The Terminal Marketing Company, Inc., as lessor (a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise"Lessor"), as well as to enter into and accept a lease (the performance"Lease"), with SMA Video Inc. ("Lessee") and for valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the undersigned hereby jointly, severally, and unconditionally guarantee to Lessor, its successors and assigns, the prompt and due payment and performance by Lessee of all of Lessee's obligations pursuant to the indebtedness Lease and all other amounts owing under this Note documents and agreements entered into by Lessee in connection therewith (collectively, the "Obligations"). Notice of acceptance of this guaranty, including as well as all such Obligations which would become due but for the operation demands, presentments and notices of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code every kind and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which nature are expressly hereby waived by the Parentundersigned. Payments by the Parent hereunder may be required Upon any default by ▇▇▇▇▇▇ on ▇, Lessor may proceed directly and immediately, without notice, against any number or all of occasionsthe undersigned to enforce all rights and remedies against the undersigned, without proceeding against Lessee or any other person and without exercising any other rights which Lessor might then possess. All payments by The undersigned hereby waive (i) the Parent hereunder shall be made right to require Lessor to proceed against Lessee or to pursue any other remedy prior to proceeding against the undersigned, and (ii) any right to the Holder, in benefit of any modification of 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, Obligations which occur 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 result of staff counsel) incurred any bankruptcy 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 insolvency 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 undersigned assume the Obligations will be paid responsibility for keeping informed of the financial condition and performed strictly in accordance with their respective termscircumstances of ▇▇▇▇▇▇, regardless and ▇▇▇▇▇▇ shall have no duty to advise the undersigned of any law, regulation information known to it regarding such condition or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect theretocircumstances. The Parent waives promptnessundersigned hereby agree, diligence, presentment, without demand, protest, notice of acceptance, notice of any Obligations immediately to reimburse Lessor for all costs and expenses including reasonable attorney's fees incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions enforcement of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made guaranty. This guaranty shall be constrained in accordance with the terms hereof; (iv) laws of the addition, substitution State of New York or release any Federal court in such state in any action related to this guaranty. In any such action the undersigned waives personal service of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which summons and complaint and agrees that service may be done without notice to made by certified or registered mail at the Parent.address set forth below. Dated: 6/26, 1996 /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ------------------------------------- Signature Name ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Address ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ /s/ illegible ------------------------------------ Witness
Appears in 1 contract
Guaranty. (ai) Guaranty The Guarantors hereby, jointly and severally, unconditionally and irrevocably, guarantee to Collateral Agent, for the benefit of Payment the Collateral Agent and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full Purchasers and punctual their respective successors, endorsees, transferees and assigns, the prompt and complete payment and performance when due (whether at the stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code Obligations.
(ii) Anything herein or in any other Transaction Document to the contrary notwithstanding, the maximum liability of each Guarantor hereunder and under the operation other Transaction Documents shall in no event exceed the amount which can be guaranteed by such Guarantor under applicable federal and state laws, including laws relating to the insolvency of debtors, fraudulent conveyance or transfer or laws affecting the rights of creditors generally (S)(S)502(bafter giving effect to the right of contribution established in Section 2(b)).
(iii) Each Guarantor agrees that the Obligations may at any time and 506(b) from time to time exceed the amount of the Federal Bankruptcy Code. This liability of such Guarantor hereunder without impairing the guaranty is an absolute, unconditional contained in this Section 2 or affecting the rights and continuing guaranty remedies of the Purchasers.
(iv) The guaranty contained in this Section 2 shall remain in full force and punctual payment and performance of effect until all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of each Guarantor under the Parent hereunder with respect to guaranty contained in this Section 2 shall have been satisfied by indefeasible payment in full (other than inchoate indemnity obligations or indemnification obligations for which no claim or demand for payment, whether oral or written has been made at such Obligations in default shalltime). Notwithstanding the foregoing and for the avoidance of doubt, upon payment in full (other than inchoate indemnity obligations or indemnification obligations for which no claim or demand by Holderfor payment, become immediately due whether oral or written has been made at such time), this Guaranty shall automatically terminate, and payable the Agent shall at the Guarantors’ sole cost and expense, execute and deliver to Holder, without demand or notice of any naturethe Guarantors such documents as the Guarantors shall reasonably request to evidence such termination, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on without any number of occasions. All payments by the Parent hereunder shall be made to the Holderrepresentation, in the manner and at the place of warranty or recourse whatsoever.
(v) No payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agreesany of the Guarantors, as any other guarantor or any other Person or received or collected by 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 Collateral Agent or 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 Purchasers from the time when such amounts become due until paymentCompany, 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 the Guarantors, any other guarantor or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available Person by virtue of any valuation, stay, moratorium law action or other similar law now proceeding or hereafter any set-off or appropriation or application at any time or from time to time in effect, any right to require the marshalling reduction of assets or in payment of the Company Obligations shall be deemed to modify, reduce, release or any other entity or other Person primarily or secondarily liable with respect to any of otherwise affect the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions liability of any instrument evidencingGuarantor hereunder which shall, securing or otherwise executed notwithstanding any such payment (other than any payment made by such Guarantor in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation payment received or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed collected from such Guarantor in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all respect of the Obligations), all remain liable for the Obligations up to the maximum liability of such Guarantor hereunder until the Obligations are indefeasibly paid in full.
(vi) Notwithstanding anything to the contrary in this Guaranty, with respect to any defaulted non-monetary Obligations the specific performance of which may by the Guarantors is not reasonably possible (e.g., the issuance of the Company’s Common Stock), the Guarantors shall only be done without notice liable for making the Purchasers whole on a monetary basis for the Company’s failure to perform such Obligations in accordance with the ParentTransaction Documents.
Appears in 1 contract
Sources: Guaranty (BitNile Metaverse, Inc.)
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Note Agreement or any other document, including instrument or agreement executed in connection therewith (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other document, instrument or agreement executed in connection therewith (collectively, the “Financing Documents”) and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 1 contract
Sources: Note Purchase Agreement (Empire State Realty OP, L.P.)
Guaranty. (a) Guaranty of Payment The Guarantor hereby irrevocably and Performance. The Parent hereby unconditionally, guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all payment obligations of the indebtedness Obligors under the Credit Agreement, up to a maximum amount as to principal of US$225,000,000 plus all interest, fees, indemnities and other amounts owing payable under this Note (collectively, the "Obligations")Credit Agreement, including all such Obligations which amounts that would become due but for the operation of the automatic stay pursuant to (S)362(aunder Section 362(c) of the Federal United States Bankruptcy Code and or similar provisions under the operation of (S)(S)502(b) and 506(b) laws of the Federal Bankruptcy CodeBahamas, The Netherlands, the United Mexican States or other applicable law (collectively, the "Guaranteed Obligations"). This guaranty is an absolute, unconditional and continuing guaranty of In the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement event that Holder first attempt to collect any of the ---------------------- Guaranteed Obligations from the Company or resort to shall not be paid when due within any collateral security or other means of obtaining payment. Should the Company default specified grace period provided for in the payment or performance of any of the ObligationsCredit Agreement, the obligations of Guarantor agrees to pay such Guaranteed Obligations within ten Business Days after the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived giving by the Parent. Payments Administrative Agent to the Guarantor and the Process Agent named in Section 15 hereof of written notice (a "Demand") demanding payment by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the HolderGuarantor, provided that in the manner and at the place of event any such payment specified therefor for payments hereunder is required to be made by the Company-------- Guarantor hereunder, the Guarantor may cause such obligation or liability to be paid on its behalf by any corporation affiliated with it, including the Obligors, provided that the Guarantor shall nevertheless be unconditionally obligated to pay such obligation or liability if such affiliate, including the Obligors, shall fail timely to pay such obligation or liability.
(b) Parent's Agreement to Pay Enforcement Costs, etcThis Guaranty is a guarantee of payment and not of performance or collection. The Parent ------------------------------------------------ further agrees, obligation of the Guarantor hereunder shall be independent of the obligation of any other Guarantor (as such term is defined in the principal obligor and not as a guarantor only, to pay to Holder, on demandCredit Agreement), all reasonable costs such obligations being joint and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountseveral.
(c) Waivers The Guarantor shall be subrogated to all rights of the Banks against the Obligors in respect of any amounts paid by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees Guarantor pursuant to the provisions of any instrument evidencingthis Guaranty; provided, securing or otherwise executed in connection with any Obligation and agrees however, that the obligations of the Parent hereunder Guarantor shall not -------- ------- be released entitled to enforce or discharged, in whole or in partreceive any payments arising out of, or otherwise affected by (i) based upon, such right of subrogation until all the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change Guaranteed Obligations shall have been irrevocably and indefeasibly paid in full and no Guaranteed Obligations may arise in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentfuture.
Appears in 1 contract
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make‑Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post‑filing or post‑petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations"), including Note Agreement or any other instrument referred to therein) all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 1 contract
Guaranty. (a) Guaranty For and in consideration of Payment and Performance. The the consummation of the Asset Purchase as set forth herein, Parent hereby unconditionally and irrevocably guarantees ----------------------------------- to Holder the full prompt and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment complete satisfaction and performance of all Vuance’s obligations hereunder, in strict accordance with the terms of this Agreement. If Vuance does not perform its obligations in strict accordance with the Obligations terms of this Agreement, Parent shall promptly perform and not satisfy Vuance’s obligations on behalf of their collectability only and is in no way conditioned upon any requirement that Holder first attempt Vuance or cause Vuance to collect any of promptly perform such obligations. Parent waives 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 benefit of any statute of the Obligations, the obligations of the Parent limitations affecting its liability 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 to the time when such amounts become due until paymentextent permitted by Law. Parent’s liability under this guaranty is not conditioned or contingent upon the genuineness, whether before validity, regularity or after judgment, at the rate enforceability 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 Actthis Agreement. 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 WidePoint to proceed against Vuance or any other entity Person or pursue any other Person primarily remedy in WidePoint’s power whatsoever. WidePoint may, at its election, exercise or secondarily liable with respect decline or fail to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce exercise any right or remedy it may have against Vuance without affecting or impairing in any way the Company liability of Parent hereunder. Parent waives any defense arising by reason of any disability or other defense of Vuance or by reason of the cessation from any cause whatsoever of the liability of Vuance. Parent waives any setoff, defense or counterclaim that Vuance may have against WidePoint. Parent waives any defense arising out of the absence, impairment or loss of any right of reimbursement or subrogation or any other entity or other Person primarily or secondarily liable with respect to any rights against Vuance. Until all of the Obligations; (ii) any extensionsobligations of Vuance have been performed in full and to the complete satisfaction of WidePoint, compromise, refinancing, consolidation Parent shall have no right of subrogation or renewals reimbursement for claims arising out of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with this Agreement or other rights against Vuance, and Parent waives any right to enforce any remedy that WidePoint now has or may hereafter have against Vuance. Parent waives all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, and notices of acceptance of this guaranty. Parent assumes the responsibility for being and keeping itself informed of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release financial condition of any entity or Vuance and of all other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary circumstances bearing upon the risk of the nonperformance of any obligation of Vuance, including but not limited to any indemnity obligation, warrants to WidePoint that it will keep so informed, and agrees that absent a request for particular information by Parent, WidePoint shall have no duty to advise Parent of information known to WidePoint regarding such condition or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentany such circumstances.
Appears in 1 contract
Sources: Asset Purchase Agreement (Vuance)
Guaranty. (a) Guaranty of Payment Subject to Section 2(b) hereof, each Guarantor jointly and Performance. The Parent severally with each other Guarantor hereby absolutely, irrevocably and unconditionally guarantees ----------------------------------- to Holder the full and punctual prompt payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy CodeBorrower Obligations. This guaranty is an absolute, unconditional and continuing Agreement constitutes a guaranty of payment, and neither the full and punctual payment and performance of all of Agent, the Obligations and not of their collectability only and is in no way conditioned upon Issuer nor any requirement that Holder first attempt Lender shall have any obligation to collect enforce any of the Obligations from the Company Loan Document or resort any Interest Rate Protection Arrangement or exercise any right or remedy with respect to any collateral security thereunder by any action, including making or other means of obtaining payment. Should the Company default in the payment perfecting any claim against any Person or performance of any collateral security for any of the Obligations, the obligations of the Parent hereunder with respect Borrower Obligations prior to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made being entitled to the Holderbenefits of this Agreement. The Agent may, at its option, proceed against the Guarantors, or any one or more of them, in the manner first instance, to enforce the Guarantor Obligations without first proceeding against the Borrower or any other Person, and at without first resorting to any other rights or remedies, as the place of payment specified therefor for payments Agent may deem advisable. In furtherance hereof, if the Agent, the Issuer or any Lender is prevented by law from collecting or otherwise hindered from collecting or otherwise enforcing any Borrower Obligation in accordance with its terms, the Agent, the Issuer or such Lender, as the case may be, shall be entitled to receive hereunder to be made by from the CompanyGuarantors after demand therefor, the sums which would have been otherwise due had such collection or enforcement not been prevented or hindered.
(b) Parent's Agreement Notwithstanding anything to Pay Enforcement Coststhe contrary contained in this Agreement, etc. The Parent ------------------------------------------------ further agreesthe maximum liability of each Guarantor hereunder shall not, as of any date of determination, exceed the principal obligor lesser of (i) the highest amount that is valid and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost enforceable against such Guarantor under principles of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable New York State contract law, then and (ii) the sum of (A) all Consideration received by such interest shall be reduced to Guarantor as of such maximum permitted amountdate of determination, plus (B) 95% of the Net Worth of such Guarantor on such date of determination.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and Each Guarantor agrees that the obligations Guarantor Obligations may at any time and from time to time exceed the maximum liability of such Guarantor hereunder without impairing this Agreement or affecting the rights and remedies of the Parent hereunder shall not be released or dischargedAgent, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company Issuer or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentLender hereunder.
Appears in 1 contract
Sources: Guaranty and Security Agreement (Video Services Corp)
Guaranty. (a) Guaranty of Payment Subject to Section 2(b) hereof, each Guarantor hereby absolutely, irrevocably and Performance. The Parent hereby unconditionally guarantees ----------------------------------- to Holder the full and punctual prompt payment when due (whether at stated maturity, by required pre-paymentacceleration, by acceleration mandatory prepayment, by notice of intention to prepay or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy CodeBorrower Obligations. This guaranty is an absolute, unconditional and continuing Agreement constitutes a guaranty of the full and punctual payment and performance of all of neither the Obligations and not of their collectability only and is in no way conditioned upon Agent nor any requirement that Holder first attempt Lender shall have any obligation to collect enforce any of the Obligations from the Company Loan Document or resort exercise any right or remedy with respect to any collateral security thereunder by any action, including, without limitation, making or other means of obtaining payment. Should the Company default in the payment perfecting any claim against any Person or performance of any collateral security for any of the Obligations, Borrower Obligations prior to being entitled to the obligations benefits of the Parent hereunder with respect to such this Agreement. The Guarantor 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 absolute, irrevocable, unconditional, direct and primary and shall not be subject to any counterclaim, right of set-off or defense whatsoever. The Agent may, at its option, proceed against the HolderGuarantors, or any one or more of them, in the manner first instance, to enforce the Guarantor Obligations without first proceeding against the Borrowers or any other Person, and at without first resorting to any other rights or remedies, as the place of payment specified therefor for payments Agent may deem advisable. In furtherance hereof, if the Agent or any Lender is prevented by law from collecting or otherwise hindered from collecting or otherwise enforcing any Borrower Obligation in accordance with its terms, the Agent or such Lender, as the case may be, shall be entitled to receive hereunder to be made by from the CompanyGuarantors after demand therefor, the sums which would have been otherwise due had such collection or enforcement not been prevented or hindered.
(b) Parent's Agreement Notwithstanding anything to Pay Enforcement Coststhe contrary contained in this Agreement, etc. The Parent ------------------------------------------------ further agreesthe maximum liability of each Guarantor hereunder shall not, as of any date of determination, exceed the principal obligor lesser of (i) the highest amount that is valid and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost enforceable against such Guarantor under principles of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable New York State contract law, then and (ii) the sum of (A) all Consideration received by such interest shall be reduced to Guarantor as of such maximum permitted amountdate of determination, plus (B) 95% of the Net Worth of such Guarantor on such date of determination.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and Each Guarantor agrees that the obligations Guarantor Obligations may at any time and from time to time exceed the maximum liability of such Guarantor hereunder without impairing this Agreement or affecting the rights and remedies of the Parent hereunder shall not be released or 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 Agent or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentLender hereunder.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment Each Borrower hereby unconditionally and Performance. The Parent hereby irrevocably, guarantees ----------------------------------- to Holder the full Lender:
(i) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of the Obligations, including unpaid and accrued interest thereon, in each case when due and payable, all according to the terms of this Agreement, the Notes and the other Financing Documents;
(whether ii) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of all other sums and charges which may at stated maturityany time be due and payable in accordance with this Agreement, the Notes or any of the other Financing Documents;
(iii) the due and punctual performance by required pre-payment, by acceleration or otherwise), as well as the performance, other Borrowers of all of the indebtedness other terms, covenants and conditions contained in the Financing Documents; and
(iv) all the other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the CompanyBorrowers.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor obligations and not liabilities of each Borrower as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, under this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest Section 2.5.11 shall be reduced to such maximum permitted amount.
(c) Waivers by absolute and unconditional and joint and several, irrespective of the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective termsgenuineness, regardless validity, priority, regularity or enforceability of any lawthis Agreement, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms the Notes or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company Financing Documents or any other entity circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Borrower in its capacity as a guarantor expressly agrees that the Lender may, in its sole and absolute discretion, without notice to or further assent of such Borrower and without in any way releasing, affecting or in any way impairing the joint and several obligations and liabilities of such Borrower as a guarantor hereunder:
(i) waive compliance with, or any defaults under, or grant any other Person primarily indulgences under or secondarily liable with respect to any of the Financing Documents;
(ii) modify, amend, change or terminate any provisions of any of the Financing Documents;
(iii) grant extensions or renewals of or with respect to the Credit Facilities, the Notes or any of the other Financing Documents;
(iv) effect any release, subordination, compromise or settlement in connection with this Agreement, any of the Notes or any of the other Financing Documents;
(v) agree to the substitution, exchange, release or other disposition of the Collateral or any part thereof, or any other collateral for the Loan or to the subordination of any lien or security interest therein;
(vi) make advances for the purpose of performing any term, provision or covenant contained in this Agreement, any of the Notes or any of the other Financing Documents with respect to which the Borrowers shall then be in default;
(vii) make future advances pursuant to the Financing Agreement or any of the other Financing Documents;
(viii) assign, pledge, hypothecate or otherwise transfer the Commitments, the Obligations, the Notes, any of the other Financing Documents or any interest therein, all as and to the extent permitted by the provisions of this Agreement;
(ix) deal in all suretyship defenses generallyrespects with the other Borrowers as if this Section 2.5.11 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 2.5.11, 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 2.5.11, 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 have against any one or more of the other Borrowers, the Lender, and/or any other guarantor and shall not be conditional or contingent upon pursuit or enforcement by the Lender of any remedies it may have against the Borrowers with respect to this Agreement, the Notes or any of the other Financing Documents, whether pursuant to the terms thereof or by operation of law. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder Lender shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder required to assert make any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to upon any of the Obligations; (ii) any extensionsBorrowers, compromiseor to sell the Collateral or otherwise pursue, refinancingenforce or exhaust its remedies against the Borrowers or the Collateral either before, consolidation concurrently with or renewals of any Obligation; (iii) any change after pursuing or enforcing its rights and remedies hereunder. Any one or more successive or concurrent actions or proceedings may be brought against each Borrower under this Section 2.5.11, either in the timesame action, place if any, brought against any one or manner more of payment the Borrowers or in separate actions or proceedings, as often as the Lender may deem expedient or advisable. Without limiting the foregoing, it is specifically understood that any modification, limitation or discharge of any of the Obligations liabilities or obligations of any one or more of the Borrowers, any other guarantor or any rescissionsobligor under any of the Financing Documents, waiversarising out of, compromiseor by virtue of, refinancingany bankruptcy, consolidation arrangement, reorganization or similar proceeding for relief of debtors under federal or state law initiated by or against any one or more of the Borrowers, in their respective capacities as borrowers and guarantors under this Section 2.5.11, 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 2.5.11 in any manner whatsoever, and this Section 2.5.11 shall remain and continue in full force and effect. It is the intent and purpose of this Section 2.5.11 that each Borrower shall and does hereby waive all rights and benefits which might accrue to any other amendments guarantor by reason of any such proceeding, and the Borrowers agree that they shall be liable for the full amount of the obligations and liabilities under this Section 2.5.11, regardless of, and irrespective to, any modification, limitation or modifications discharge of the liability of any one or more of the Borrowers, any other guarantor or any obligor under any of the Financing Documents, that may result from any such proceedings.
(d) Each Borrower, as guarantor under this Section 2.5.11, 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 2.5.11 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 amount of any portion of or all of the indebtedness guaranteed by this Section 2.5.11;
(v) demand for observance, performance or enforcement of any of the terms or provisions of this Note Section 2.5.11, the Notes or any of the other agreement evidencing, securing or otherwise executed Financing Documents;
(vi) all errors and omissions in connection with the Lender’s administration of all indebtedness guaranteed by this Section 2.5.11, except errors and omissions resulting from acts of bad faith;
(vii) any right or claim of right to cause a marshaling of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release assets of any entity one or more of the other person primarily or secondarily liable for any Obligation; or Borrowers;
(vviii) any other act or omission of the Lender which might in any manner or to any extent vary changes the scope of the risk as guarantor hereunder; and
(ix) all other notices and demands otherwise required by law which the Borrower may lawfully waive. Within ten (10) days following any request of the Parent Lender so to do, each Borrower will furnish the Lender and such other persons as the Lender may direct with a written certificate, duly acknowledged stating in detail whether or otherwise operate as a release not any credits, offsets or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice defenses exist with respect to the Parentthis Section 2.5.11.
Appears in 1 contract
Sources: Financing and Security Agreement (Rand Worldwide Inc)
Guaranty. (a) Guaranty Guarantor hereby absolutely, irrevocably and unconditionally guarantees the due, punctual and complete payment and performance of Payment each and Performance. The Parent hereby guarantees ----------------------------------- every obligation of Purchaser under the Limited Notice to Holder Proceed and work under and pursuant to the full Contracts occurring on or before the Financial Close for the Project, whether such obligation presently exists or is created, incurred or arising from time to time hereafter, all as and punctual payment when due (whether at stated maturityrequired to be performed under the Limited Notice to Proceed and the Contracts, by required pre-paymentin all respects strictly in accordance with the terms, by acceleration or otherwise), as well as conditions and limitations contained in the performance, of all of Limited Notice to Proceed and the indebtedness and other amounts owing under this Note Contracts (collectively, the "“Guaranteed Obligations"”), including all such Obligations which would become due but and agrees that if for the operation of the automatic stay pursuant any reason whatsoever Purchaser shall fail or be unable to (S)362(a) of the Federal Bankruptcy Code duly, punctually and the operation of (S)(S)502(b) fully pay or perform any Guaranteed Obligation as and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolutewhen due, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default Guarantor shall, in the payment or event of a Purchaser Event of Default in performance of any of the ObligationsGuaranteed Obligations by Purchaser under the Limited Notice to Proceed and the Contracts, upon written demand of IFCO, with prior written notice to Purchaser, forthwith Exhibit 10.50(b) to Form 10-Q for the obligations Quarter Ended September 30, 2008 filed by ADA-ES, Inc. (File No. 000-50216) on November 7, 2008 pay or perform or cause to be performed such Guaranteed Obligation, without regard to any exercise or non-exercise by IFCO of any right, remedy, power or privilege under or in respect of the Parent hereunder with respect Limited Notice to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty Proceed and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generallyContracts against Purchaser. Without limiting the generality of the foregoing, the Parent agrees foregoing and notwithstanding anything herein to the provisions contrary, a termination of any instrument evidencingthe Limited Notice to Proceed and the Contracts by IFCO for an Event of Default by Purchaser occurring on or before the date of the Financial Close for the Project, securing if any, shall not impair, diminish, release or otherwise executed in connection with any Obligation affect Guarantor’s obligations hereunder. This Guaranty is a guarantee of payment and agrees that the obligations performance and not of the Parent collection. All payments by Guarantor hereunder shall not be released or discharged, made by deposit of immediately available funds to an account identified by IFCO. The Guarantor hereby guarantees that payments hereunder shall be made in whole or U.S. Dollars and in part, or otherwise affected by the manner required for the relevant payment due from Purchaser under the Limited Notice to Proceed. This Guaranty shall continue in full force and effect until the earlier of (i) Financial Close for the failure of Holder to assert any claim Project or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation Purchaser or renewals of any Obligation; (iii) any change in the time, place Guarantor shall have satisfactorily performed or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of fully discharged all of the Guaranteed Obligations); provided, all of which may be done without notice however notwithstanding any provision in this Guaranty to the Parentcontrary, Guarantor shall have the full benefit of all defenses, setoffs, counterclaims, reductions, diminution or limitations of any Guaranteed Obligations available to Purchaser pursuant to or arising from the Limited Notice to Proceed and the Contracts or otherwise and Guarantor’s obligations and liability arising from this Guaranty shall be no greater than that of Purchaser under the Limited Notice to Proceed and the portions of the Contracts to be performed prior to the Financial Close for the Project.
Appears in 1 contract
Guaranty. FOR VALUE RECEIVED, and in consideration of and as an inducement to the execution of the attached Lease Agreement, dated as of February 17, 2004, by and between PERIMETER CENTER PARTNERS, as Landlord, and TAILORED BUSINESS SYSTEMS, INC., as Tenant, the undersigned (ahereinafter referred to as "Guarantor") Guaranty of Payment and Performance. The Parent does hereby guarantees ----------------------------------- absolutely guarantee to Holder Landlord the full and punctual complete payment when due (whether at stated maturity, of the rent and other charges to Landlord to be paid by required pre-payment, Tenant under said Lease Agreement and the full and complete performance by acceleration or otherwise), as well as the performance, said Tenant of all of the indebtedness other terms, conditions, covenants, and other amounts owing under this Note agreements of said Lease Agreement. Guarantor agrees that (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(aa) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the HolderLandlord may, 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 Costshis discretion, 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 extend the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of all or any part of the Obligations rent under said Lease Agreement without notice to or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any consent of the terms Guarantor, and (b) that Landlord may exercise or provisions of this Note or forebear from exercising any other agreement evidencing, securing rights against the Tenant under said Lease Agreement or otherwise executed act or forebear from acting, and may settle or compromise any rent which may become due under said Lease Agreement without notice to or consent of Guarantor or grant or make any accommodation, alteration, modification, indulgence to Tenant, all without releasing Guarantor from its obligations hereunder or limiting or impairing its liability. The undersigned further agrees that its liability under this Guaranty shall be primary, and that in connection with any right of action which shall accrue to Landlord under said Lease Agreement, the Landlord may, at his option, proceed against the undersigned without having commenced any action, or having obtained any judgment and without first attempting to collect or proceed against Tenant. This Guaranty shall be binding upon the respective successors and assigns of Guarantor and shall inure to the benefit of the Obligations made in accordance with the terms hereof; successor, personal representatives and assigns of Landlord. The obligations and liability of Guarantor shall not be affected, impaired or limited by (iva) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent Tenant in any creditors' receivership, bankruptcy or other proceedings; (other than b) the indefeasible payment in fullimpairment, in cash, of all limitation or modification of the Obligations)liability of the Tenant or its estate in bankruptcy, all or of which may be done without notice any remedy for the enforcement of the Tenant's liability under the lease, resulting from the operation of any present or future provision of the Bankruptcy Code or other statute or from the decision in any court; (c) the rejection or disaffirmance of the lease in any such proceedings; or (d) the cessation from any cause whatsoever of the liability of the Tenant. The undersigned further represents to the ParentLandlord, as an inducement for him to make said lease, that the undersigned has a financial interest in the Tenant. The liability of each Guarantor executing this Guaranty shall be joint and several.
Appears in 1 contract
Sources: Lease Agreement (Villageedocs Inc)
Guaranty. Section 1.1 The Guarantor hereby irrevocably and unconditionally guarantees to each Secured Party and their respective permitted successors and assigns, the due and punctual payment in full and performance of (a) Guaranty the principal of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder interest on the full Loans (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 punctual payment any other amounts due from the Borrower under the Credit Agreement or any other Loan Document when and as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as (b) any other sums which may become due from the performance, of all Borrower under the terms and provisions of the indebtedness Credit Agreement or any other Loan Document and (c) all other amounts owing obligations of the Borrower under this Note the Credit Agreement or any other Loan Document (collectively, the "Obligations"all such obligations described in clauses (a), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(bb) and 506(b(c) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect from the Borrower or any other guarantor of the Guaranteed Obligations or upon any other action, occurrence or circumstance whatsoever. In the event that the Borrower shall fail so to pay any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the such Guaranteed Obligations, the obligations of Guarantor agrees to pay the Parent hereunder with respect same when due to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holderthe Secured Parties entitled thereto, without demand demand, presentment, protest or notice of any naturekind, all in lawful money of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number United States of occasions. All payments by the Parent hereunder shall be made America, pursuant to the Holder, requirements for payment specified in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etcCredit Agreement. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder Each default in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises.
Section 1.2 The Guarantor agrees to pay and to indemnify and save each Secured Party harmless from and against any damage, loss, cost or expense (including attorneys’ (other than in-house counsel) fees) which such Secured Party may incur or be subject to as a consequence, direct or indirect, of (x) any breach by the Guarantor or by the Borrower of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Credit Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Credit Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Guaranty Agreement.
Section 1.3 The Guarantor hereby acknowledges and agrees that its liability hereunder is joint and several with any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentCredit Agreement.
Appears in 1 contract
Sources: Guaranty Agreement (Madison Square Garden Entertainment Corp.)
Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby Guarantor absolutely, unconditionally, and irrevocably guarantees ----------------------------------- to Holder each of the holders:
(i) the full and punctual prompt payment of the principal of and interest on the Notes and Make-Whole Amount, if any, when due (due, whether at stated maturity, by required pre-payment, by upon acceleration or otherwise, and at all times thereafter, and the prompt payment of all sums that may now be or may hereafter become due and owing under the Notes, this Agreement, or any Subsidiary Guaranty;
(ii) the payment of all Parent Guaranty Enforcement Costs (as defined in Section 23.3 below); and
(iii) the full, as well as the complete, and punctual observance, performance, and satisfaction of all of the indebtedness obligations, duties, covenants, and other amounts owing agreements of the Company under this Note Agreement. All amounts due, debts, liabilities, and payment obligations described in subparagraph (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(ai) of this Section 23.1(a) are referred to herein as the Federal Bankruptcy Code and the operation of “Guaranteed Note Indebtedness.” All obligations described in subparagraph (S)(S)502(b) and 506(biii) of this Section 23.1(a) are referred to herein as the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the “Parent Guaranty Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.”
(b) Parent's Agreement to Pay Enforcement CostsIn the event of any default by the Company in making payment of the Guaranteed Note Indebtedness, etc. The or in performance of the Parent ------------------------------------------------ further Guaranty Obligations, as aforesaid, in each case beyond the expiration of any applicable grace period, the Parent Guarantor agrees, as on demand by the principal obligor and not as a guarantor onlyholders, to pay all the Guaranteed Note Indebtedness and to Holder, on demand, perform all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred Parent Guaranty Obligations as are then or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts thereafter become due until payment, whether before and owing or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted are to be paid --------- performed under applicable law, then such interest shall be reduced to such maximum permitted amount.the terms of the Notes and this Agreement. Terreno Realty LLC Note Purchase Agreement
(c) Waivers The Parent Guarantor does hereby waive (i) any and all notices and demands of every kind that may be required to be given by any Law, (ii) any defense or right of set-off that the Parent Guarantor may have against the Company or that Parent Guarantor or the Company may have against any holder of a Note, (iii) presentment for payment, demand for payment (other than as provided for in paragraph (b) above), notice of nonpayment (other than as provided for in paragraph (b) above) or dishonor, protest and notice of protest, diligence in collection and any and all formalities that otherwise might be legally required to charge the Parent Guarantor with liability, (iv) any defense based on the failure by the Parent; ▇▇▇▇▇▇'s Freedom holders to Act. The inform the Parent agrees ---------------------------------------------- Guarantor of any fact that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order holders may now or hereafter in effect in any jurisdiction affecting any of such terms know about the Company, the Notes, this Agreement, or the rights transactions contemplated by this Agreement, it being understood and agreed that the holders have no duty so to inform and that the Parent Guarantor is fully responsible for being and remaining informed by the Company of Holder with respect thereto. The all circumstances bearing on the existence or creation, or the risk of nonpayment of the Guaranteed Note Indebtedness or the risk of nonperformance of the Parent waives promptnessGuaranty Obligations, diligence, presentment, demand, protest, notice of acceptance, notice of and (v) any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the cause a marshalling of assets of the Company or any other entity action by any court or other Person primarily or secondarily liable governmental body with respect thereto, or to cause the holders to proceed against any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed other security given another holder in connection with the Guaranteed Note Indebtedness or the Parent Guaranty Obligations. The holders shall have no obligation to disclose or discuss with the Parent Guarantor, such holder’s assessment of the financial condition of the Company. The Parent Guarantor acknowledges that no representations of any Obligation kind whatsoever have been made by the holders to the Parent Guarantor, except as expressly set forth in Section 6 herein.
(d) The Parent Guarantor further agrees that its liability as guarantor shall in no way be impaired by any renewals or extensions that may be made from time to time, with or without the knowledge or consent of the Parent Guarantor of the time for payment of interest or principal under a Note or any Make-Whole Amount or by any forbearance or delay in collecting interest or principal under a Note, or by any waiver by any holder, or by any holder’s failure or election not to pursue any other remedies they may have against the Company, or by any change or modification in a Note, this Agreement, any Subsidiary Guaranty, or by the acceptance by any holder of any security or any increase, substitution or change therein, or by the release by any holder of any security or any withdrawal thereof or decrease therein, or by the application of payments received from any source to the payment of any obligation other than the Guaranteed Note Indebtedness, (unless such payment was expressly directed to be applied to the Guaranteed Note Indebtedness and such direction was made in accordance with this Agreement) even though a holder may lawfully have elected to apply such payments to any part or all of the Guaranteed Note Indebtedness, it being the intent hereof that Parent Guarantor shall remain liable as principal for payment of the Guaranteed Note Indebtedness and performance of the Parent Guaranty Obligations until all Indebtedness has been paid in full and the other terms, covenants and conditions of the this Agreement, the Notes, any Subsidiary Guaranty and this Parent Guaranty have been performed, notwithstanding any act or thing that might otherwise operate as a legal or equitable discharge of a surety. The Parent Guarantor further understands and agrees that the obligations holders may at any time enter into agreements with the Company to amend or modify a Note, this Agreement or any Subsidiary Guaranty and may waive or release any provision or provisions of a Note, this Agreement or any Subsidiary Guaranty and, with reference to such Terreno Realty LLC Note Purchase Agreement instruments, may make and enter into any such agreement or agreements as the holders and the Company may deem proper and desirable, without in any manner impairing the guaranty in this Section 23 or any of the holders’ rights hereunder or any of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentGuarantor’s obligations hereunder.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby Guarantor absolutely, unconditionally, and irrevocably guarantees ----------------------------------- to Holder each of the holders:
(i) the full and punctual prompt payment of the principal of and interest on the Notes and Make-Whole Amount, if any, when due (due, whether at stated maturity, by required pre-payment, by upon acceleration or otherwise, and at all times thereafter, and the prompt payment of all sums that may now be or may hereafter become due and owing under the Notes, this Agreement, or any Subsidiary Guaranty;
(ii) the payment of all Parent Guaranty Enforcement Costs (as defined in Section 23.3 below); and
(iii) the full, as well as the complete, and punctual observance, performance, and satisfaction of all of the indebtedness obligations, duties, covenants, and other amounts owing agreements of the Company under this Note Agreement. All amounts due, debts, liabilities, and payment obligations described in subparagraph (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(ai) of this Section 23.1(a) are referred to herein as the Federal Bankruptcy Code and the operation of “Guaranteed Note Indebtedness.” All obligations described in subparagraph (S)(S)502(b) and 506(biii) of this Section 23.1(a) are referred to herein as the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the “Parent Guaranty Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.”
(b) Parent's Agreement to Pay Enforcement CostsIn the event of any default by the Company in making payment of the Guaranteed Note Indebtedness, etc. The or in performance of the Parent ------------------------------------------------ further Guaranty Obligations, as aforesaid, in each case beyond the expiration of any applicable grace period, the Parent Guarantor agrees, as on demand by the principal obligor and not as a guarantor onlyholders, to pay all the Guaranteed Note Indebtedness and to Holder, on demand, perform all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred Parent Guaranty Obligations as are then or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts thereafter become due until payment, whether before and owing or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted are to be paid --------- performed under applicable law, then such interest shall be reduced to such maximum permitted amountthe terms of the Notes and this Agreement.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- Guarantor does hereby waive (i) any and all notices and demands of every kind that the Obligations will may be paid and performed strictly in accordance with their respective terms, regardless of required to be given by any law, regulation (ii) any defense or order right of set-off that the Parent Guarantor may have against the Company or that Parent Guarantor or the Company may have against any holder of a Note, (iii) presentment for payment, demand for payment (other than as provided for in paragraph (b) above), notice of nonpayment (other than as provided for in paragraph (b) above) or dishonor, protest and notice of protest, diligence in collection and any and all formalities that otherwise might be legally required to charge the Parent Guarantor with liability, (iv) any defense based on the failure by the holders to inform the Parent Guarantor of any fact that the holders may now or hereafter in effect in any jurisdiction affecting any of such terms know about the Company, the Notes, this Agreement, or the rights transactions contemplated by this Agreement, it being understood and agreed that the holders have no duty so to inform and that the Parent Guarantor is fully responsible for being and remaining informed by the Company of Holder with respect thereto. The all circumstances bearing on Terreno Realty LLC Note Purchase Agreement the existence or creation, or the risk of nonpayment of the Guaranteed Note Indebtedness or the risk of nonperformance of the Parent waives promptnessGuaranty Obligations, diligence, presentment, demand, protest, notice of acceptance, notice of and (v) any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the cause a marshalling of assets of the Company or any other entity action by any court or other Person primarily or secondarily liable governmental body with respect thereto, or to cause the holders to proceed against any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed other security given another holder in connection with the Guaranteed Note Indebtedness or the Parent Guaranty Obligations. The holders shall have no obligation to disclose or discuss with the Parent Guarantor such holder’s assessment of the financial condition of the Company. The Parent Guarantor acknowledges that no representations of any Obligation kind whatsoever have been made by the holders to the Parent Guarantor, except as expressly set forth in Section 6 herein.
(d) The Parent Guarantor further agrees that its liability as guarantor shall in no way be impaired by any renewals or extensions that may be made from time to time, with or without the knowledge or consent of the Parent Guarantor of the time for payment of interest or principal under a Note or any Make-Whole Amount or by any forbearance or delay in collecting interest or principal under a Note, or by any waiver by any holder, or by any holder’s failure or election not to pursue any other remedies it may have against the Company, or by any change or modification in a Note, this Agreement, any Subsidiary Guaranty, or by the acceptance by any holder of any security or any increase, substitution or change therein, or by the release by any holder of any security or any withdrawal thereof or decrease therein, or by the application of payments received from any source to the payment of any obligation other than the Guaranteed Note Indebtedness, (unless such payment was expressly directed to be applied to the Guaranteed Note Indebtedness and such direction was made in accordance with this Agreement) even though a holder may lawfully have elected to apply such payments to any part or all of the Guaranteed Note Indebtedness, it being the intent hereof that Parent Guarantor shall remain liable as principal for payment of the Guaranteed Note Indebtedness and performance of the Parent Guaranty Obligations until all Indebtedness has been paid in full and the other terms, covenants and conditions of the this Agreement, the Notes, any Subsidiary Guaranty and this Section 23 have been performed, notwithstanding any act or thing that might otherwise operate as a legal or equitable discharge of a surety. The Parent Guarantor further understands and agrees that the obligations holders may at any time enter into agreements with the Company to amend or modify a Note, this Agreement or any Subsidiary Guaranty and may waive or release any provision or provisions of a Note, this Agreement or any Subsidiary Guaranty and, with reference to such instruments, may make and enter into any such agreement or agreements as the holders and the Company may deem proper and desirable, without in any manner impairing the guaranty in this Section 23 or any of the holders’ rights hereunder or any of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentGuarantor’s obligations hereunder.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment MRCC and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note Bedminster (collectively, the "ObligationsGuarantors"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is on an absolute, unconditional and continuing guaranty basis, each hereby guarantees to LGAF, and 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, 1) all Put Option Obligations that relate to or arise from the full Puts and/or the Bonds, 2) all costs, reasonable attorneys' fees and punctual payment and performance other expenses paid or incurred by LGAF to enforce the terms of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to or collect any sums under this Agreement upon an Event of Default by CAHC, and/or 3) all renewals and extensions thereof (the Obligations from the Company or resort to any collateral security or other means "Guaranty"). Pursuant thereto, MRCC and Bedminster absolutely, unconditionally and continuously agree, promise and covenant that, upon an Event of obtaining payment. Should the Company default in the payment or performance of any of the ObligationsDefault, the obligations of the Parent hereunder with respect to such Obligations in default shallMRCC and Bedminster, upon demand by Holder, become immediately due LGAF and payable to Holder, without demand or further notice of dishonor and without any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligationsmatter 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 suretyship defenses generallysuch Put Option Obligations. Without limiting Each of MRCC, Bedminster and LGAF hereby confirms that it is the generality intention of all such persons that this Guaranty and the foregoingobligations 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 relief of debtors ("Bankruptcy Law"), the Parent agrees Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to the provisions extent applicable to this Guaranty and the obligations of any instrument evidencingeach Guarantor hereunder. To effectuate the foregoing intention, securing or otherwise executed in connection with any Obligation LGAF, MRCC and agrees Bedminster hereby irrevocably agree that the obligations of each Guarantor under this Guaranty at any time shall be limited to the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change maximum amount as will result in the time, place obligations of such Guarantor under this Guaranty not constituting a fraudulent transfer or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentconveyance.
Appears in 1 contract
Sources: Put Option Agreement (Compost America Holding Co Inc)
Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby Guarantor absolutely, unconditionally, and irrevocably guarantees ----------------------------------- to Holder each of the holders:
(i) the full and punctual prompt payment of the principal of and interest on the Notes and Make-Whole Amount, if any, when due (due, whether at stated maturity, by required pre-payment, by upon acceleration or otherwise, and at all times thereafter, and the prompt payment of all sums that may now be or may hereafter become due and owing under the Notes, this Agreement, or any Subsidiary Guaranty;
(ii) the payment of all Parent Guaranty Enforcement Costs (as defined in Section 23.3 below); and
(iii) the full, as well as the complete, and punctual observance, performance, and satisfaction of all of the indebtedness obligations, duties, covenants, and other amounts owing agreements of the Company under this Note Agreement. All amounts due, debts, liabilities, and payment obligations described in subparagraph (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(ai) of this Section 23.1(a) are referred to herein as the Federal Bankruptcy Code and the operation of “Guaranteed Note Indebtedness.” All obligations described in subparagraph (S)(S)502(b) and 506(biii) of this Section 23.1(a) are referred to herein as the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the “Parent Guaranty Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.”
(b) Parent's Agreement to Pay Enforcement CostsIn the event of any default by the Company in making payment of the Guaranteed Note Indebtedness, etc. The or in performance of the Parent ------------------------------------------------ further Guaranty Obligations, as aforesaid, in each case beyond the expiration of any applicable grace period, the Parent Guarantor agrees, as on demand by the principal obligor and not as a guarantor onlyholders, to pay all the Guaranteed Note Indebtedness and to Holder, on demand, perform all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred Parent Guaranty Obligations as are then or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts thereafter become due until payment, whether before and owing or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted are to be paid --------- performed under applicable law, then such interest shall be reduced to such maximum permitted amountthe terms of the Notes and this Agreement.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- Guarantor does hereby waive (i) any and all notices and demands of every kind that the Obligations will may be paid and performed strictly in accordance with their respective terms, regardless of required to be given by any law, regulation (ii) any defense or order right of set-off that the Parent Guarantor may have against the Company or that Parent Guarantor or the Company may have against any holder of a Note, (iii) presentment for payment, demand for payment (other than as provided for in paragraph (b) above), notice of nonpayment (other than as provided for in paragraph (b) above) or dishonor, protest and notice of protest, diligence in collection and any and all formalities that otherwise might be legally required to charge the Parent Guarantor with liability, (iv) any defense based on the failure by the holders to inform the Parent Guarantor of any fact that the holders may now or hereafter in effect in any jurisdiction affecting any of such terms know about the Company, the Notes, this Agreement, or the rights transactions contemplated by this Agreement, it being understood and agreed that the holders have no duty so to inform and that the Parent Guarantor is fully responsible for being and remaining informed by the Company of Holder with respect thereto. The all circumstances bearing on the existence or creation, or the risk of nonpayment of the Guaranteed Note Indebtedness or the risk of nonperformance of the Parent waives promptnessGuaranty Obligations, diligence, presentment, demand, protest, notice of acceptance, notice of and (v) any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the cause a marshalling of assets of the Company or any other entity action by any court or other Person primarily or secondarily liable governmental body with respect thereto, or to cause the holders to proceed against any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed other security given another holder in connection with the Guaranteed Note Indebtedness or the Parent Guaranty Obligations. The holders shall have no obligation to disclose or discuss with the Parent Guarantor such Terreno Realty LLC Agreement Note Purchase holder’s assessment of the financial condition of the Company. The Parent Guarantor acknowledges that no representations of any Obligation kind whatsoever have been made by the holders to the Parent Guarantor, except as expressly set forth in Section 6 herein.
(d) The Parent Guarantor further agrees that its liability as guarantor shall in no way be impaired by any renewals or extensions that may be made from time to time, with or without the knowledge or consent of the Parent Guarantor of the time for payment of interest or principal under a Note or any Make-Whole Amount or by any forbearance or delay in collecting interest or principal under a Note, or by any waiver by any holder, or by any holder’s failure or election not to pursue any other remedies it may have against the Company, or by any change or modification in a Note, this Agreement, any Subsidiary Guaranty, or by the acceptance by any holder of any security or any increase, substitution or change therein, or by the release by any holder of any security or any withdrawal thereof or decrease therein, or by the application of payments received from any source to the payment of any obligation other than the Guaranteed Note Indebtedness, (unless such payment was expressly directed to be applied to the Guaranteed Note Indebtedness and such direction was made in accordance with this Agreement) even though a holder may lawfully have elected to apply such payments to any part or all of the Guaranteed Note Indebtedness, it being the intent hereof that Parent Guarantor shall remain liable as principal for payment of the Guaranteed Note Indebtedness and performance of the Parent Guaranty Obligations until all Indebtedness has been paid in full and the other terms, covenants and conditions of the this Agreement, the Notes, any Subsidiary Guaranty and this Section 23 have been performed, notwithstanding any act or thing that might otherwise operate as a legal or equitable discharge of a surety. The Parent Guarantor further understands and agrees that the obligations holders may at any time enter into agreements with the Company to amend or modify a Note, this Agreement or any Subsidiary Guaranty and may waive or release any provision or provisions of a Note, this Agreement or any Subsidiary Guaranty and, with reference to such instruments, may make and enter into any such agreement or agreements as the holders and the Company may deem proper and desirable, without in any manner impairing the guaranty in this Section 23 or any of the holders’ rights hereunder or any of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentGuarantor’s obligations hereunder.
Appears in 1 contract
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Note Agreement or any other instrument referred to therein, including (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect from the Issuer or any other guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other action, occurrence or circumstance whatsoever. In the event that the Issuer shall fail so to pay any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the such Guaranteed Obligations, each Guarantor agrees to pay the obligations of same when due to the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holderholders entitled thereto, without demand demand, presentment, protest or notice of any naturekind, all in lawful money of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number United States of occasions. All payments by the Parent hereunder shall be made America, pursuant to the Holder, requirements for payment specified in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty Notes and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth Note Agreement. Each default in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Issuer of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 1 contract
Sources: Guaranty Agreement (Midcoast Energy Partners, L.P.)
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Note Agreement or any other document, including instrument or agreement executed in connection therewith (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other document, instrument or agreement executed in connection therewith (collectively, the “Financing Documents”) and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Note Agreement. Notwithstanding the foregoing provisions or any other agreement evidencingprovision of this Guaranty Agreement, securing or otherwise executed in connection the Purchasers (on behalf of themselves and their successors and assigns) and each Guarantor hereby agree that if at any time the Guaranteed Obligations exceed the Maximum Guaranteed Amount determined as of such time with any of regard to such Guarantor, then this Guaranty Agreement shall be automatically amended to reduce the Guaranteed Obligations made in accordance with to the terms hereof; (iv) Maximum Guaranteed Amount. Such amendment shall not require the addition, substitution or release written consent of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.Guarantor or
Appears in 1 contract
Sources: Note Purchase Agreement (Empire State Realty OP, L.P.)
Guaranty. (a) Guaranty of Payment and Performance14.1. The Parent hereby absolutely, irrevocably and unconditionally guarantees ----------------------------------- to Holder the prompt, full and punctual complete payment when due (due, whether at stated maturity, by required pre-payment, by upon acceleration or otherwise), as well as the performanceand at all times thereafter, of all (a) the principal of and interest on the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be Advances made by the Company.
Lenders to, and the Notes held by the Lenders of, the Borrower and (b) Parent's Agreement all other amounts from time to Pay Enforcement Coststime owing to the Lenders by the Borrower under this Agreement, etcthe 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"). The This is a guaranty of payment, not a guaranty of collection.
14.2. Parent ------------------------------------------------ further agreeswaives notice of the acceptance of this Article XIV ----------- (solely for purposes of this Article XIV, referred to as the principal obligor "Guaranty") and not as a guarantor only, to pay to Holder, on demand, of ----------- the extension or incurrence of the Guaranteed Debt or any part thereof. Parent further waives all reasonable costs setoffs and expenses (including court costs counterclaims 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 notice, filing of acceptanceclaims with a court in the event of receivership, notice bankruptcy or reorganization of the Borrower, demand or action on delinquency in respect of the Guaranteed Debt or any Obligations incurred and all other notices of any kindpart thereof, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, including any right to require the marshalling of assets of Agent or any Lender to ▇▇▇ the Company Borrower, or any other entity or other Person primarily or secondarily liable person obligated with respect to the Guaranteed Debt or any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in partpart thereof, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce payment thereof against any right or remedy against collateral securing the Company Guaranteed Debt or any other entity or other Person primarily or secondarily liable with respect 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 of the Obligations; (ii) any extensionsreduction, compromiselimitation, refinancingimpairment, consolidation or renewals of any Obligation; (iii) any change in the timetermination, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent defense (other than the indefeasible payment in full, in cash, of all of the Obligations), setoff, counterclaim or recoupment whatsoever (all of which may be done without notice are hereby expressly waived by it to the Parent.fullest extent permitted by law), whether by reason of any claim of any character whatsoever, including, without limitation, any claim of waiver, release, surrender, alteration or
Appears in 1 contract
Sources: Credit Agreement (Fund American Enterprises Holdings Inc)
Guaranty. (a) Guaranty Each Guarantor, jointly and severally with each other Guarantor, unconditionally and irrevocably guarantees to the Holders the due, prompt and complete payment by the Company of Payment the principal of, make-whole amount, if any, and Performance. The Parent hereby guarantees ----------------------------------- to Holder interest on, and each other amount due under, the full Notes or the Note Purchase Agreement, when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise) in accordance with the terms of the Notes and the Note Purchase Agreement (the Notes and the Note Purchase Agreement being sometimes hereinafter collectively referred to as the “Note Documents” and the amounts payable by the Company under the Note Documents, and all other monetary obligations of the Company thereunder (including any attorneys’ fees and expenses), as well being sometimes collectively hereinafter referred to as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "“Obligations"”), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty Guaranty is an absolute, unconditional and continuing a guaranty of the full and punctual payment and performance not just of all of the Obligations and not of their collectability only collectibility and is in no way conditioned or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to upon any collateral security other event, contingency or other means of obtaining paymentcircumstance whatsoever. Should If for any reason whatsoever the Company default in shall fail or be unable duly, punctually and fully to pay such amounts as and when the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, same shall become immediately due and payable to Holderpayable, each Guarantor, without demand demand, presentment, protest or notice of any naturekind, all of which are expressly waived by the Parent. Payments by the Parent hereunder may will forthwith pay or cause to be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made paid such amounts to the HolderHolders under the terms of such Note Documents, in lawful money of the manner and United States, at the place of payment specified therefor for payments hereunder in the Note Purchase Agreement, or perform or comply with the same or cause the same to be made by performed or complied with, together with interest (to the extent provided for under such Note Documents) on any amount due and owing from the Company.
(b) Parent's Agreement to Pay Enforcement Costs. Each Guarantor, etc. The Parent ------------------------------------------------ further agreespromptly after demand, as the principal obligor and not as a guarantor only, to will pay to Holder, on demand, all the Holders the reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when collecting such amounts become due until paymentor otherwise enforcing this Guaranty, whether before or after judgmentincluding, at without limitation, the rate reasonable fees and expenses of interest set forth in (S)1 hereofcounsel. Notwithstanding the foregoing, provided that if such interest exceeds the maximum amount permitted right of recovery against each Guarantor under this Guaranty is limited to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable extent it is judicially determined with respect to any Guarantor that entering into this Guaranty would violate Section 548 of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the United States Bankruptcy Code or any comparable provisions of any instrument evidencingstate law, securing or otherwise executed in connection with any Obligation and agrees which case such Guarantor shall be liable under this Guaranty only for amounts aggregating up to the largest amount that the would not render such Guarantor’s obligations hereunder subject to avoidance under Section 548 of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company United States Bankruptcy Code or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals comparable provisions of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentstate law.
Appears in 1 contract
Sources: Guaranty (Tetra Technologies Inc)
Guaranty. To induce the Guaranteed Party to enter into that certain Agreement and Plan of Merger, dated as of the date hereof (aas amended, restated, amended and restated, supplemented, waived or otherwise modified from time to time in accordance with the terms thereof, the “Merger Agreement”), by and among Guaranteed Party, Apex Merger Sub, Inc., a Delaware corporation (“Merger Sub”) Guaranty of Payment and Performance. The Parent Apex Intermediate Holdco, Inc., a Delaware corporation (“Parent”), each Sponsor hereby absolutely, unconditionally and irrevocably guarantees ----------------------------------- to Holder the full Guaranteed Party, as primary obligors and not merely sureties, severally (and not jointly or jointly and severally), subject to the Cap (as defined below), the due and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise)performance and discharge when required of its percentage (such percentage for each Sponsor as set forth opposite such Sponsor’s name on Schedule A hereto, as well as the performance, its “Maximum Sponsor Percentage”) of all payment obligations of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay Parent pursuant to Section 8.5(a) or (S)362(ac) of the Federal Bankruptcy Code and Merger Agreement following the operation of (S)(S)502(b) and 506(b) termination of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of Merger Agreement (the full and punctual payment and performance of all of the Obligations and not of their collectability only and is “Obligations”); provided that in no way conditioned upon event shall any requirement that Holder first attempt Sponsor’s aggregate liability under this Guaranty exceed an amount equal to collect any such Sponsor’s Maximum Sponsor Percentage 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$100,000,000.00 (such amount, the obligations “Cap”). Notwithstanding anything in this Guaranty, the Merger Agreement or any other agreement to the contrary, the Guaranteed Party hereby agrees that the liability of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent each Sponsor hereunder shall be made several (and not joint or joint and several) based upon its respective Maximum Sponsor Percentage of the Cap, and in no event shall any Sponsor be required to pay any amount to the HolderGuaranteed Party or any Affiliate thereof under, 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 Costsrespect of, 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 this Guaranty in excess of such Sponsor’s Maximum Sponsor Percentage of the Cap. The parties hereto agree that this Guaranty may not be enforced without giving effect to the Cap and the immediately preceding sentence. The Guaranteed Party may, in its sole discretion, take any and all actions available hereunder or under applicable Law to enforce the Sponsor’s obligations hereunder in respect of such Obligations, subject to the terms and conditions of 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 ActGuaranty. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality In furtherance of the foregoing, the Parent agrees Guaranteed Party may, in its sole discretion, bring and prosecute a separate action against each Sponsor for the full amount of such Sponsor’s Maximum Sponsor Percentage of the Obligations (subject to the provisions Cap), regardless of whether action is brought against Parent or whether Parent is joined in any instrument evidencing, securing such action or otherwise executed in connection with any Obligation and actions. The Guaranteed Party agrees that the obligations of the Parent hereunder it, its equityholders, and their respective Affiliates shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim hereunder or demand under the Merger Agreement, directly or to enforce indirectly, that the Sponsors are liable for an aggregate amount in excess of the Cap or that any right or remedy against individual Sponsor is liable for an amount in excess of such Sponsor’s Maximum Sponsor Percentage of the Cap, except that the Company or any other entity or other Person primarily or secondarily liable with respect to any may assert a claim for specific performance of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in Equity Commitment Letter to the time, place or manner of payment of any extent permitted by Section 5 of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any Equity Commitment Letter delivered to the Company by the Sponsors as of the terms or provisions of date hereof (the “Equity Commitment Letter”) (it being understood that in no event shall the Company be permitted to both enforce the Equity Commitment Letter and receive payment under this Note or any other agreement evidencing, securing or otherwise executed Guaranty). All payments hereunder shall be made in connection with any lawful money of the Obligations made United States in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentimmediately available funds.
Appears in 1 contract
Sources: Limited Guaranty (Agiliti, Inc. \De)
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Schedule 4.11 Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Shelf Agreement or any other instrument referred to therein, including (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Shelf Agreement. Each default in payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued in connection with the Shelf Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including reasonable attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, or the Guaranteed Obligations, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the validity or enforceability of this Guaranty Agreement, the Notes, the Shelf Agreement or any rescissions, waivers, compromise, refinancing, consolidation other instrument referred to therein and (z) enforcing or other amendments defending (or modifications of any of determining whether or how to enforce or defend) the terms or provisions of this Note Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Shelf Agreement. Notwithstanding the foregoing provisions or any other agreement evidencingprovision of this Guaranty Agreement, securing or otherwise executed in connection the Purchasers (on behalf of themselves and their successors and assigns) and each Guarantor hereby agree that if at any time the Guaranteed Obligations exceed the Maximum Guaranteed Amount determined as of such time with any of regard to such Guarantor, then this Guaranty Agreement shall be automatically amended to reduce the Guaranteed Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.Maximum
Appears in 1 contract
Guaranty. (a) Guaranty of Payment Subject to Section 2(b) hereof, each Guarantor hereby absolutely, irrevocably and Performance. The Parent hereby unconditionally guarantees ----------------------------------- to Holder the full and punctual prompt payment when due (whether at stated maturity, by required pre-paymentacceleration, by acceleration mandatory prepayment, by notice of intention to prepay or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code Borrower Obligations. This Guaranty constitutes a guaranty of payment and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absoluteBank shall have no obligation to enforce any Loan Document or exercise any right or remedy with respect to any Collateral by any action, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon making or perfecting any requirement that Holder first attempt to collect claim against any Person or any collateral security for any of the Borrower Obligations from prior to being entitled to the Company or resort benefits of this Guaranty. The Guarantor Obligations shall be absolute, irrevocable, unconditional, direct and primary and shall not be subject to any collateral security counterclaim, right of set-off or other means defense whatsoever. The Bank may, at its option, proceed against the Guarantors, or any one or more 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 Holderthem, in the manner first instance, to enforce the Guarantor Obligations without first proceeding against the Borrower or any other Person, and at without first resorting to any other rights or remedies, as the place of payment specified therefor for payments Bank may deem advisable. In furtherance hereof, if the Bank is prevented by law from collecting or otherwise hindered from collecting or otherwise enforcing any Borrower Obligation in accordance with its terms, the Bank shall be entitled to receive hereunder to be made by from the CompanyGuarantors after demand therefor, the sums which would have been otherwise due had such collection or enforcement not been prevented or hindered.
(b) Parent's Agreement Notwithstanding anything to Pay Enforcement Coststhe contrary contained in this Guaranty, etc. The Parent ------------------------------------------------ further agreesthe maximum liability of each Guarantor hereunder shall not, as of any date of determination, exceed the principal obligor lesser of the highest amount that is valid and not as a guarantor onlyenforceable against such Guarantor under principles of New York State contract law, 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 thereofsum of all Consideration received by such Guarantor as of such date of determination, together with interest PLUS 95% of the Net Worth of such Guarantor on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate date 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 amountdetermination.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and Each Guarantor agrees that the obligations Guarantor Obligations may at any time and from time to time exceed the maximum liability of such Guarantor hereunder without impairing this Guaranty or affecting the rights and remedies of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentBank hereunder.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby Guarantor absolutely, unconditionally, and irrevocably guarantees ----------------------------------- to Holder each of the holders:
(i) the full and punctual prompt payment of the principal of and interest on the Notes and Make-Whole Amount, if any, when due (due, whether at stated maturity, by required pre-payment, by upon acceleration or otherwise, and at all times thereafter, and the prompt payment of all sums that may now be or may hereafter become due and owing under the Notes, this Agreement, or any Subsidiary Guaranty;
(ii) the payment of all Parent Guaranty Enforcement Costs (as defined in Section 23.3 below); and Terreno Realty LLC Note Purchase Agreement
(iii) the full, as well as the complete, and punctual observance, performance, and satisfaction of all of the indebtedness obligations, duties, covenants, and other amounts owing agreements of the Company under this Note Agreement. All amounts due, debts, liabilities, and payment obligations described in subparagraph (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(ai) of this Section 23.1(a) are referred to herein as the Federal Bankruptcy Code and the operation of “Guaranteed Note Indebtedness.” All obligations described in subparagraph (S)(S)502(b) and 506(biii) of this Section 23.1(a) are referred to herein as the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the “Parent Guaranty Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.”
(b) Parent's Agreement to Pay Enforcement CostsIn the event of any default by the Company in making payment of the Guaranteed Note Indebtedness, etc. The or in performance of the Parent ------------------------------------------------ further Guaranty Obligations, as aforesaid, in each case beyond the expiration of any applicable grace period, the Parent Guarantor agrees, as on demand by the principal obligor and not as a guarantor onlyholders, to pay all the Guaranteed Note Indebtedness and to Holder, on demand, perform all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred Parent Guaranty Obligations as are then or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts thereafter become due until payment, whether before and owing or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted are to be paid --------- performed under applicable law, then such interest shall be reduced to such maximum permitted amountthe terms of the Notes and this Agreement.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- Guarantor does hereby waive (i) any and all notices and demands of every kind that the Obligations will may be paid and performed strictly in accordance with their respective terms, regardless of required to be given by any law, regulation (ii) any defense or order right of set-off that the Parent Guarantor may have against the Company or that Parent Guarantor or the Company may have against any holder of a Note, (iii) presentment for payment, demand for payment (other than as provided for in paragraph (b) above), notice of nonpayment (other than as provided for in paragraph (b) above) or dishonor, protest and notice of protest, diligence in collection and any and all formalities that otherwise might be legally required to charge the Parent Guarantor with liability, (iv) any defense based on the failure by the holders to inform the Parent Guarantor of any fact that the holders may now or hereafter in effect in any jurisdiction affecting any of such terms know about the Company, the Notes, this Agreement, or the rights transactions contemplated by this Agreement, it being understood and agreed that the holders have no duty so to inform and that the Parent Guarantor is fully responsible for being and remaining informed by the Company of Holder with respect thereto. The all circumstances bearing on the existence or creation, or the risk of nonpayment of the Guaranteed Note Indebtedness or the risk of nonperformance of the Parent waives promptnessGuaranty Obligations, diligence, presentment, demand, protest, notice of acceptance, notice of and (v) any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the cause a marshalling of assets of the Company or any other entity action by any court or other Person primarily or secondarily liable governmental body with respect thereto, or to cause the holders to proceed against any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed other security given another holder in connection with the Guaranteed Note Indebtedness or the Parent Guaranty Obligations. The holders shall have no obligation to disclose or discuss with the Parent Guarantor such holder’s assessment of the financial condition of the Company. The Parent Guarantor acknowledges that no representations of any Obligation kind whatsoever have been made by the holders to the Parent Guarantor, except as expressly set forth in Section 6 herein.
(d) The Parent Guarantor further agrees that its liability as guarantor shall in no way be impaired by any renewals or extensions that may be made from time to time, with or without the knowledge or consent of the Parent Guarantor of the time for payment of interest or principal under a Note or any Make-Whole Amount or by any forbearance or delay in collecting interest or principal under a Note, or by any waiver by any holder, or by any holder’s failure or election not to pursue any other remedies it may have against the Company, or by any change or modification in a Note, this Agreement, any Subsidiary Guaranty, or by the acceptance by any holder of any security or any increase, substitution or change therein, or by the release by any holder of any security or any withdrawal thereof or decrease therein, or by the application of payments Terreno Realty LLC Note Purchase Agreement received from any source to the payment of any obligation other than the Guaranteed Note Indebtedness, (unless such payment was expressly directed to be applied to the Guaranteed Note Indebtedness and such direction was made in accordance with this Agreement) even though a holder may lawfully have elected to apply such payments to any part or all of the Guaranteed Note Indebtedness, it being the intent hereof that Parent Guarantor shall remain liable as principal for payment of the Guaranteed Note Indebtedness and performance of the Parent Guaranty Obligations until all Indebtedness has been paid in full and the other terms, covenants and conditions of the this Agreement, the Notes, any Subsidiary Guaranty and this Section 23 have been performed, notwithstanding any act or thing that might otherwise operate as a legal or equitable discharge of a surety. The Parent Guarantor further understands and agrees that the obligations holders may at any time enter into agreements with the Company to amend or modify a Note, this Agreement or any Subsidiary Guaranty and may waive or release any provision or provisions of a Note, this Agreement or any Subsidiary Guaranty and, with reference to such instruments, may make and enter into any such agreement or agreements as the holders and the Company may deem proper and desirable, without in any manner impairing the guaranty in this Section 23 or any of the holders’ rights hereunder or any of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentGuarantor’s obligations hereunder.
Appears in 1 contract
Guaranty. Each Subsidiary Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Subsidiary Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make‑Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post‑filing or post‑petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations"), including Note Agreement or any other instrument referred to therein (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity guarantor of the Notes (including, without limitation, any other Subsidiary Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Subsidiary Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Subsidiary Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Subsidiary Guaranty Agreement. Each Subsidiary Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Subsidiary Guarantor, by any other Subsidiary Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Subsidiary Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Subsidiary Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Subsidiary Guaranty Agreement. Each Subsidiary Guarantor hereby acknowledges and agrees that such Subsidiary Guarantor’s liability hereunder is joint and several with the other Subsidiary Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise)Guarantor, as well primary obligor and not as the performancesurety, of all of the indebtedness hereby unconditionally and other amounts owing under this Note irrevocably guarantees to Obligee and its respective successors and permitted assigns (individually, a "Beneficiary" and, collectively, the "ObligationsBeneficiaries")) as their respective interests may appear: (a) the due, including punctual and full payment by Obligor of all amounts (including, without limitation, amounts payable as damages in case of an Event of Default and all such Obligations amounts which would become due but for the operation of the automatic stay pursuant to (S)362(aunder Section 362(a) of the Federal United States Bankruptcy Code Code, 11 U.S.C. ss.362(a) and the operation of (S)(S)502(bSections 502(b) and 506(b) of the Federal United States Bankruptcy Code. This guaranty is an absolute, unconditional 11 U.S.C. ss.502(b) and continuing guaranty of ss.506(b)) to be paid by Obligor in accordance with the full Asset Use Agreement and punctual payment any other Operative Document whether such obligations now exist or arise hereafter, as and performance of all of when the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, same shall become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by in accordance with 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 terms thereof; and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's the due, prompt and faithful performance when due of, and compliance with, all other obligations, covenants, terms, conditions and undertakings of Obligor contained in the Asset Use Agreement or any other Operative Documents to Pay Enforcement Costs, etcwhich Obligor is or is to be a party in accordance with the terms thereof (such obligations referred to in clauses (a) and (b) above being hereinafter called the "Obligations"). The Parent ------------------------------------------------ Guarantor further agrees, as the principal obligor and not as a guarantor only, agrees to pay to Holder, on demand, any and all reasonable costs and expenses (including court costs reasonable fees and reasonable legal expenses, including the allocated cost disbursements of staff counsel) that may be paid or incurred by any Beneficiary in collecting any Obligations and/or in preserving or expended enforcing any rights under this Guaranty or under the Obligations. The Guaranty is a guaranty of payment, performance and compliance and not of collectability, is in no way conditioned or contingent upon any attempt to collect from or enforce performance or compliance by Holder in connection Obligor or upon any other event, contingency or circumstance whatsoever, and shall be binding upon and against Guarantor without regard to the validity or enforceability of the Asset Use Agreement or any other Operative Document. If for any reason whatsoever Obligor shall fail or be unable duly, punctually and fully to pay the Obligations as and when the same shall become due and payable or to perform or comply with the ObligationsObligations when due to be performed or observed, this guaranty and in each case, in accordance with the enforcement thereofOperative Documents, or if a Guaranty Event of Default (as defined herein) occurs Guarantor will immediately pay or cause to be paid the Obligations to the Person or Persons entitled to receive the same (according to their respective interests) under the terms of the Operative Documents, as appropriate, or perform or comply with the Obligations or cause the same to be performed or complied with, together with interest on amounts recoverable hereunder any amount due and owing from the time when such amounts date the same shall have become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees payable to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner date of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as at a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice rate equal to the ParentOverdue Rate.
Appears in 1 contract
Sources: Guaranty (Oxford Automotive Inc)
Guaranty. (a) Guaranty of Payment O▇▇▇▇ Corning, a Delaware corporation will initially be entering into the Transaction referred to below and Performance. The Parent hereby guarantees ----------------------------------- will be succeeded, except to Holder the full and punctual payment when due (whether at stated maturityextent otherwise provided in the Confirmation related to the Transaction, by required pre-payment, by acceleration or otherwise), the Asbestos Personal Injury Trust (as well as the performance, defined in O▇▇▇▇ Corning’s Plan of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(bReorganization) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to each such Obligations in default entity shall, upon demand by Holderfor purposes of this Guaranty only, become immediately due be the “Counterparty” under that Transaction (and payable thus the Beneficiary of this Guaranty, with all rights and privileges to Holderenforce the same). To induce the Beneficiary to enter into a Transaction with Bear, 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 S▇▇▇▇▇▇ on any number of occasions. All payments International Limited (“BSE”) evidenced by the Parent hereunder shall 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 made succeeded by the Asbestos Personal Injury Trust, except to the Holder, extent otherwise provided in the manner Confirmation related to the Transaction) (“Master Agreement” and at together with such Confirmation and any other Confirmation forming a part of that ISDA Master Agreement, the place “Agreement”; terms capitalized but not otherwise defined herein being used herein as therein defined), the Guarantor irrevocably and unconditionally guarantees to the Beneficiary, its successors and permitted assigns, the prompt and complete payment and performance by BSE, on demand, of payment specified therefor for payments hereunder any amount due and payable to be made by the CompanyBeneficiary from time to time under the Agreement, subject to any applicable grace period thereunder (the “Obligations”).
(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 Guarantor hereby waives acceptance (including court costs and reasonable legal expenses, including the allocated cost or notice of staff counselacceptance) incurred or expended by Holder in connection with the Obligations, of 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 promptnessGuaranty, diligence, promptness, presentment, demanddemand on BSE for payment or performance, protest, notice protest of acceptance, notice of any Obligations incurred nonpayment and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoingIn addition, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the Guarantor’s obligations of the Parent hereunder shall not be released or dischargedaffected by the existence, in whole or in partvalidity, enforceability, perfection, or otherwise affected by (i) extent of any collateral 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 similar proceeding, and the failure of Holder the Beneficiary so to assert any claim or demand or to enforce any right or remedy against file shall not affect the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner Guarantor’s obligations hereunder. The Guarantor agrees that its obligations under this Guaranty constitute a guaranty of payment and not of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentcollection.
Appears in 1 contract
Sources: Letter Agreement (Owens Corning/Fibreboard Asbestos Personal Injury Trust)
Guaranty. Each Subsidiary Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Subsidiary Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations"), including Note Agreement or any other instrument referred to therein (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity guarantor of the Notes (including, without limitation, any other Subsidiary Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Subsidiary Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Subsidiary Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement. Each Subsidiary Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Subsidiary Guarantor, by any other Subsidiary Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Guaranty Agreement. Each Subsidiary Guarantor hereby acknowledges and agrees that such Subsidiary Guarantor’s liability hereunder is joint and several with the other Subsidiary Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 1 contract
Guaranty. From and after the date hereof until the termination of this Guaranty in accordance with Section 10 hereof, the Guarantor hereby irrevocably and unconditionally guarantees to the Beneficiaries, and each Beneficiary's respective successors and permitted assigns, the full and prompt payment when due of: (a) Guaranty all of Payment the funding, contribution, indemnity and Performance. The Parent hereby guarantees ----------------------------------- payment obligations of the NRG Member described in Section 2 of the NRG Cash Grant Recapture Indemnity Agreement (the "NRG Cash Grant Obligations") and (b) any payment or other obligation of Borrower arising out of all or any portion of a 1603 Grant received by or for the benefit of Borrower in respect of the Project being “recaptured” or disallowed by the Treasury because of (i) any direct or indirect transfer by EFS Desert Sun, LLC, a Delaware limited liability company ("GE Member") of its Equity Interests in Borrower to Holder a Disqualified Person, but only to the full extent that at the time of such transfer, GE Member was an indirect or beneficial owner of Borrower and punctual payment (ii) any misstatements, misrepresentations or inaccuracies, in each case as to matters of fact, in respect of GE Member or any direct or indirect owner of GE Member made by Borrower in any 1603 Grant Application ("GE Cash Grant Obligations", and together with the NRG Cash Grant Obligations, the "Cash Grant Obligations"), in each case when the same shall become due (and payable, whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as in each case after any applicable grace periods or notice requirements, according to the performance, of all terms of the indebtedness NRG Cash Grant Recapture Indemnity Agreement; provided, however, that (A) the Guarantor shall not be liable to make any payment until twenty Business Days following receipt by the Guarantor of written notice from any Beneficiary that payment of an amount is due thereunder (a "Demand Notice") and (B) no Beneficiary may deliver any Demand Notice or otherwise make any demand or claim against Guarantor under this Guaranty without first having demanded payment from the NRG Member in respect of the NRG Cash Grant Obligations. Any Beneficiary may deliver a Demand Notice under this Guaranty. The Guarantor shall make payments under this Guaranty to an account as specified in Section 2(c) of the NRG Cash Grant Recapture Indemnity Agreement (or as otherwise provided in the NRG Cash Grant Recapture Indemnity Agreement). With respect to any claim, action or proceeding against the Guarantor in connection with this Guaranty, Guarantor shall be entitled to assert only those defenses, claims, setoffs and other amounts owing under this Note rights which the NRG Member would be able to assert if such claim, action or proceeding were to be asserted or instituted against the NRG Member based upon the NRG Cash Grant Recapture Indemnity Agreement (collectivelysuch defenses, claims, setoffs and other rights, the "ObligationsNRG Member Rights"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Shelf Agreement or any other instrument referred to therein, including (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Shelf Agreement. Each default in payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued in connection with the Shelf Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including reasonable attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, or the Guaranteed Obligations, together with all expenses resulting from the compromise or defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the validity or enforceability of this Guaranty Agreement, the Notes, the Shelf Agreement or any rescissions, waivers, compromise, refinancing, consolidation other instrument referred to therein and (z) enforcing or other amendments defending (or modifications of any of determining whether or how to enforce or defend) the terms or provisions of this Note Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other Person(s) who may guarantee the obligations and Indebtedness under and in respect of the Notes and the Shelf Agreement. Notwithstanding the foregoing provisions or any other agreement evidencingprovision of this Guaranty Agreement, securing or otherwise executed in connection with any the Purchasers (on behalf of the Obligations made in accordance with the terms hereof; (ivthemselves and their successors and assigns) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.and each
Appears in 1 contract
Guaranty. (a) Guaranty of Payment Subject to Section 2(b) hereof, each Guarantor hereby absolutely, irrevocably and Performance. The Parent hereby unconditionally guarantees ----------------------------------- to Holder the full and punctual prompt payment when due (whether at stated maturity, by required pre-paymentacceleration, by acceleration mandatory prepayment, by notice of intention to prepay or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code Borrower Obligations. This Guaranty constitutes a guaranty of payment and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absoluteBank shall have no obligation to enforce any Loan Document or exercise any right or remedy with respect to any Collateral by any action, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon making or perfecting any requirement that Holder first attempt to collect claim against any Person or any collateral security for any of the Borrower Obligations from prior to being entitled to the Company or resort benefits of this Guaranty. The Guarantor Obligations shall be absolute, irrevocable, unconditional, direct and primary and shall not be subject to any collateral security counterclaim, right of set-off or other means defense whatsoever. The Bank may, at its option, proceed against the Guarantors, or any one or more 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 Holderthem, in the manner first instance, to enforce the Guarantor Obligations without first proceeding against the Borrower or any other Person, and at without first resorting to any other rights or remedies, as the place of payment specified therefor for payments Bank may deem advisable. In furtherance hereof, if the Bank is prevented by law from collecting or otherwise hindered from collecting or otherwise enforcing any Borrower Obligation in accordance with its terms, the Bank shall be entitled to receive hereunder to be made by from the CompanyGuarantors after demand therefor, the sums which would have been otherwise due had such collection or enforcement not been prevented or hindered.
(b) Parent's Agreement Notwithstanding anything to Pay Enforcement Coststhe contrary contained in this Guaranty, etc. The Parent ------------------------------------------------ further agreesthe maximum liability of each Guarantor hereunder shall not, as of any date of determination, exceed the principal obligor lesser of (i) the highest amount that is valid and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost enforceable against such Guarantor under principles of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable New York State contract law, then and (ii) the sum of all Consideration received by such interest shall be reduced to Guarantor as of such maximum permitted amountdate of determination, plus 95% of the Net Worth of such Guarantor on such date of determination.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and Each Guarantor agrees that the obligations Guarantor Obligations may at any time and from time to time exceed the maximum liability of such Guarantor hereunder without impairing this Guaranty or affecting the rights and remedies of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentBank hereunder.
Appears in 1 contract
Sources: Subsidiary Guaranty (Meta Group Inc)
Guaranty. (a) Guaranty of Payment Buyer Guarantor hereby fully guarantees the due and Performance. The Parent hereby guarantees ----------------------------------- prompt performance, payment and discharge when due of, agrees to Holder cause Buyer from and after the full Closing to perform when due, and shall be jointly and severally liable with Buyer for the due and punctual performance, payment when due and discharge of, each and every obligation of Buyer from and after the Closing) arising under this Agreement and the Related Agreements (whether at stated maturitycollectively, by required pre-payment, by acceleration or otherwisethe “Buyer Guaranteed Obligations”), including the payment of the Purchase Price and Buyer’s indemnification obligations under Article XI. To the extent permitted by applicable Law, the Buyer Guaranteed Obligations are primary, absolute, unconditional and irrevocable, and such obligations shall continue in full force and effect until the payment and performance, as well as the performanceapplicable, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Buyer Guaranteed Obligations and are not of their collectability only and is in no way conditioned upon any requirement that Holder event or contingency or upon any attempt first attempt to collect obtain payment from Buyer under this Agreement or any of the Related Agreements, or pursuit of any other right or remedy against any Buyer through the commencement of Proceedings or otherwise. With respect to its obligations hereunder, to the extent permitted by applicable Law, Buyer Guarantor expressly waives diligence, presentment, demand of payment, protest and all notices whatsoever. Buyer Guarantor acknowledges and agrees that its obligations hereunder shall continue in full force and effect, without notice from any other party or Buyer in the event the obligations of Buyer or Seller under this Agreement or any of the Related Agreements are amended or in any way modified, and that the Buyer Guaranteed Obligations shall continue and shall apply in full to such amended obligations of Buyer or Buyer Guarantor as though the amended terms had been part of this Agreement or any of the Related Agreements, as applicable, from the Company original date of execution thereof. Buyer Guarantor waives any right to require that any resort be had by Seller (a) against Buyer for any of the Buyer Guaranteed Obligations or resort (b) against any other right or remedy available to Seller by contract, applicable Law or otherwise. Buyer Guarantor waives and relinquishes all defenses of a guarantor or surety, whether now existing or hereafter arising and whether known or unknown, and Buyer Guarantor agrees that the validity of this Section 12.14 and its obligations hereunder shall not be affected, diminished, limited or impaired by any collateral security event whatsoever, including, without limitation, any defenses available to Buyer under applicable laws relating to insolvency, bankruptcy or relief for debtors (including, without limitation, the Bankruptcy Code, 11 U.S.C. §101 et. seq., as amended) or otherwise, or any limitations on Buyer’s liabilities or Seller’s right to recover damages from Buyer under the Bankruptcy Code, 11 U.S.C. §101 et. seq., as amended, or otherwise. No failure to assert any of its rights or remedies against Buyer, extension of time for the satisfaction of Buyer’s obligations hereunder, or other means of obtaining payment. Should the Company default in the payment indulgence, forbearance, modification, addition, waiver or performance amendment of any of the terms of this Agreement shall affect Buyer Guarantor’s liability hereunder. In connection with the Buyer Guaranteed Obligations, Buyer Guarantor hereby represents and warrants to Parent that the value of the consideration received, and to be received, by Buyer Guarantor in connection with the Contemplated Transactions is worth at least as much as the liabilities and obligations of Buyer Guarantor under this Section 12.14, and that such liabilities and obligations are expected to benefit Buyer Guarantor either directly or indirectly. Buyer Guarantor hereby irrevocably appoints the Parent hereunder with respect to such Obligations in default shallfollowing person as its attorney, 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 whom may be required by served any notice, process or pleading in any action or proceeding against it arising out of, or in connection with, this Agreement, and consents to service of process upon such person with the same effect as if the Buyer Guarantor had been served lawfully with such process: Copec Inc., c/o The Corporation Trust Company, Corporation Trust Center, ▇▇▇▇ ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law▇▇▇▇▇▇▇▇▇▇, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
Appears in 1 contract
Sources: Equity Purchase Agreement (Delek US Holdings, Inc.)
Guaranty. For the benefit of each other party hereto (a) each a "Guaranty of Payment Party"), Guarantor irrevocably and Performance. The Parent hereby unconditionally guarantees ----------------------------------- to Holder the full and punctual prompt payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise)) of Lease Payments, as well as the performanceAvailability Fees, Supplemental Payments and any interest due thereon and of all obligations and liabilities (including, without limitation, indemnities, fees and interest 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 due performance and compliance by Lessee with the terms of the indebtedness Lease Agreement and other amounts owing under this Note the Operative Documents binding on Lessee (all such payments, interest, obligations and liabilities, collectively, the "Guaranteed Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder Guarantor under this guaranty shall be made to on the Holder, in same basis as payments by Lessee under the manner and at the place Operative Documents. Guarantor hereby waives notice 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 acceptance 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 notice of any lawliability to which it may apply, 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 and waives promptness, diligence, presentment, demanddemand of payment, protest, notice of acceptance, notice dishonor or nonpayment of any Obligations incurred such liability, suit or taking of other action by an Guaranty Party against, and all any 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 effectnotice to, any right to require the marshalling of assets of the Company party liable thereon (including such Guarantor or any other entity guarantor). Any Guaranty Party may at any time and from time to time unless otherwise prohibited under the Operative Documents without the consent of, or other Person primarily notice to Guarantor, without incurring responsibility to Guarantor and without impairing or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that releasing the obligations of the Parent hereunder shall not be released Guarantor hereunder, upon or discharged, 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 thereof, and the guaranty herein made shall apply to the Guaranteed Obligations as so changed, extended, renewed or 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 liabilities (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 by, any circumstance or occurrence whatsoever, including,without limitation (i) the failure of Holder to assert any claim action or demand inaction by any Guaranty Party; or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensionsinvalidity, compromise, refinancing, consolidation irregularity or renewals unenforceability of all or part of the Guaranteed Obligations or of any Obligationsecurity 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 Person pursuant to or in respect of this Section 8, any claim which Guarantor may 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 no course of dealing between Guarantor, any Guaranty Party or the holder of any Note or Certificate shall operate as a waiver thereof; (iii) nor shall any change 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 or the holder of any Note or Certificate 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 timerights of any Guaranty Party or the holder of any Note or Certificate to any other or further action in any circumstances without notice or demand. This guaranty shall continue to be effective, place or manner of payment be reinstated, as the case may be, if at any time payment, or any part thereof, or of any of the Guaranteed Obligations is rescinded or must otherwise be restored or returned by the Guaranty Parties upon the insolvency, bankruptcy, dissolution, liquidation or reorganization of Lessee or Guarantor, or upon or as a result of the appointment of a receiver, intervenor, or conservator of, or trustee or similar officer for, Lessee or Guarantor or any rescissionssubstantial part of its property, waivers, compromise, refinancing, consolidation or other amendments or modifications all as though such payment had not been made and any statute of limitations in favor of Guarantor against any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or Guaranty Party relating to any extent vary the risk of the Parent such amount to be restored or otherwise operate as a release returned shall be tolled, or discharge of the Parent (other than the indefeasible payment in fulldeemed to have been tolled, in cash, of all of the Obligations), all of which may be done without notice to the Parentextent permitted by law, during the period from the date 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 (Universal Compression Inc)
Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby Guarantor absolutely, unconditionally, and irrevocably guarantees ----------------------------------- to Holder each of the holders:
(i) the full and punctual prompt payment of the principal of and interest on the Notes and Make-Whole Amount, if any, when due (due, whether at stated maturity, by required pre-payment, by upon acceleration or otherwise, and at all times thereafter, and the prompt payment of all sums that may now be or may hereafter become due and owing under the Notes, this Agreement, or any Subsidiary Guaranty;
(ii) the payment of all Parent Guaranty Enforcement Costs (as defined in Section 23.3 below); and
(iii) the full, as well as the complete, and punctual observance, performance, and satisfaction of all of the indebtedness obligations, duties, covenants, and other amounts owing agreements of the Company under this Note Agreement. All amounts due, debts, liabilities, and payment obligations described in subparagraph (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(ai) of this Section 23.1(a) are referred to herein as the Federal Bankruptcy Code and the operation of “Guaranteed Note Indebtedness.” All obligations described in subparagraph (S)(S)502(b) and 506(biii) of this Section 23.1(a) are referred to herein as the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the “Parent Guaranty Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.”
(b) Parent's Agreement to Pay Enforcement CostsIn the event of any default by the Company in making payment of the Guaranteed Note Indebtedness, etc. The or in performance of the Parent ------------------------------------------------ further Guaranty Obligations, as aforesaid, in each case beyond the expiration of any applicable grace period, the Parent Guarantor agrees, as on demand by the principal obligor and not as a guarantor onlyholders, to pay all the Guaranteed Note Indebtedness and to Holder, on demand, perform all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred Parent Guaranty Obligations as are then or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts thereafter become due until payment, whether before and owing or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted are to be paid --------- performed under applicable law, then such interest shall be reduced to such maximum permitted amountthe terms of the Notes and this Agreement.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- Guarantor does hereby waive (i) any and all notices and demands of every kind that the Obligations will may be paid and performed strictly in accordance with their respective terms, regardless of required to be given by any law, regulation (ii) any defense or order right of set-off that the Parent Guarantor may have against the Company or that Parent Guarantor or the Company may have against any holder of a Note, (iii) presentment for payment, demand for payment (other than as provided for in paragraph (b) above), notice of nonpayment (other than as provided for in paragraph (b) above) or dishonor, protest and notice of protest, diligence in collection and any and all formalities that otherwise might be legally required to charge the Parent Guarantor with liability, (iv) any defense based on the failure by the holders to inform the Parent Guarantor of any fact that the holders may now or hereafter in effect in any jurisdiction affecting any of such terms know about the Company, the Notes, this Agreement, or the rights transactions contemplated by this Agreement, it being understood and agreed that the holders have no duty so to inform and that the Parent Guarantor is fully responsible for being and remaining informed by the Company of Holder with respect thereto. The all circumstances bearing on the existence or creation, or the risk of nonpayment of the Guaranteed Note Indebtedness or the risk of nonperformance of the Parent waives promptnessGuaranty Obligations, diligence, presentment, demand, protest, notice of acceptance, notice of and (v) any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the cause a Terreno Realty LLC Agreement Note Purchase marshalling of assets of the Company or any other entity action by any court or other Person primarily or secondarily liable governmental body with respect thereto, or to cause the holders to proceed against any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed other security given another holder in connection with the Guaranteed Note Indebtedness or the Parent Guaranty Obligations. The holders shall have no obligation to disclose or discuss with the Parent Guarantor such holder’s assessment of the financial condition of the Company. The Parent Guarantor acknowledges that no representations of any Obligation kind whatsoever have been made by the holders to the Parent Guarantor, except as expressly set forth in Section 6 herein.
(d) The Parent Guarantor further agrees that its liability as guarantor shall in no way be impaired by any renewals or extensions that may be made from time to time, with or without the knowledge or consent of the Parent Guarantor of the time for payment of interest or principal under a Note or any Make-Whole Amount or by any forbearance or delay in collecting interest or principal under a Note, or by any waiver by any holder, or by any holder’s failure or election not to pursue any other remedies it may have against the Company, or by any change or modification in a Note, this Agreement, any Subsidiary Guaranty, or by the acceptance by any holder of any security or any increase, substitution or change therein, or by the release by any holder of any security or any withdrawal thereof or decrease therein, or by the application of payments received from any source to the payment of any obligation other than the Guaranteed Note Indebtedness, (unless such payment was expressly directed to be applied to the Guaranteed Note Indebtedness and such direction was made in accordance with this Agreement) even though a holder may lawfully have elected to apply such payments to any part or all of the Guaranteed Note Indebtedness, it being the intent hereof that Parent Guarantor shall remain liable as principal for payment of the Guaranteed Note Indebtedness and performance of the Parent Guaranty Obligations until all Indebtedness has been paid in full and the other terms, covenants and conditions of the this Agreement, the Notes, any Subsidiary Guaranty and this Section 23 have been performed, notwithstanding any act or thing that might otherwise operate as a legal or equitable discharge of a surety. The Parent Guarantor further understands and agrees that the obligations holders may at any time enter into agreements with the Company to amend or modify a Note, this Agreement or any Subsidiary Guaranty and may waive or release any provision or provisions of a Note, this Agreement or any Subsidiary Guaranty and, with reference to such instruments, may make and enter into any such agreement or agreements as the holders and the Company may deem proper and desirable, without in any manner impairing the guaranty in this Section 23 or any of the holders’ rights hereunder or any of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentGuarantor’s obligations hereunder.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment Each Guarantor with all other Guarantors, hereby absolutely, unconditionally and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full irrevocably, jointly and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise)severally guarantees, as well a primary obligor and not merely as the performancea surety, of all to each holder of the indebtedness Notes and other amounts owing under this Note (collectivelyits successors and assigns, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all when due, whether at stated maturity, by acceleration or otherwise, of the Obligations principal at the applicable Redemption Price and interest on (including, without limitation, interest, whether or not an allowable claim, accruing after the date of filing of any petition in bankruptcy, or the commencement of any bankruptcy, insolvency or similar proceeding relating to the Company) the Notes and all other amounts under the Note Purchase Agreement and all other obligations, agreements and covenants of the Company now or hereafter existing under the Notes, the Note Purchase Agreement or any of the other Loan Documents, whether for principal, at the applicable Redemption Price, interest (including interest accruing or becoming owing both prior to and subsequent to the commencement of any proceeding against or with respect to the Company under any chapter of the Bankruptcy Reform Act of 1978, as amended, 11 U.S.C. Section 101 et seq., (the "Bankruptcy Code")), indemnification payments, damages payable under the Loan Documents, expenses (including reasonable attorneys' fees and expenses) or otherwise, and all reasonable costs and expenses, if any, actually incurred by any holder in connection with enforcing any rights under this Guaranty (all such obligations being the "Guaranteed Obligations"), and agrees to pay any and all reasonable expenses incurred by each holder in enforcing this Guaranty; provided that, notwithstanding anything contained herein, in the Note or in the Note Purchase Agreement to the contrary, the maximum liability of each Guarantor hereunder and under the Notes and the Note Purchase Agreement shall in no event exceed such Guarantor's Maximum Guaranteed Amount, and provided further, each Guarantor shall be unconditionally required to pay all amounts demanded of it hereunder prior to any determination of such Maximum Guaranteed Amount and the recipient of such payment, if so required by a final non-appealable order of a court of competent jurisdiction, shall then be liable for the refund of any amounts received in excess of such Guarantor's Maximum Guaranteed Amount. If any such rebate or refund is ever required, all other Guarantors (and the Company) shall be fully liable for the repayment thereof to the maximum extent allowed by applicable law. This Guaranty is an absolute, unconditional, present and continuing guaranty of payment and not a guaranty of their collectability only collectibility and is in no way conditioned upon any requirement that Holder first attempt to collect from the Company, another Guarantor or any other action, occurrence or circumstance whatsoever. Each Guarantor agrees that the Guaranteed Obligations may at any time and from to time exceed the Maximum Guaranteed Amount of such Guarantor without impairing this Guaranty or affecting the rights and remedies of the Obligations from holders of the Notes hereunder. Notwithstanding any stay, injunction or other prohibition preventing such action against the Company, if for any reason whatsoever the Company shall fail or resort be unable duly, punctually and fully to any collateral security or other means of obtaining payment. Should the Company default perform and (in the payment or performance of any case of the payment of Guaranteed Obligations, ) pay such amounts as and when the obligations same shall become due and (in the case of the Parent hereunder payment of Guaranteed Obligations) payable or to perform or comply with respect any other Guaranteed Obligation, whether or not such failure or inability shall constitute an "Event of Default" under the Note Purchase Agreement or the Notes, each Guarantor will forthwith (in the case of the payment of Guaranteed Obligations) pay or cause to be paid 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 amounts to the Holderholders, in lawful money of the manner and United States of America, at the place of payment specified therefor for payments hereunder in the Note Purchase Agreement, or perform or comply with such Guaranteed Obligations or cause such Guaranteed Obligations to be made by performed or complied with (in the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as case of 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 payment of staff counsel) incurred or expended by Holder in connection with the Guaranteed Obligations, this guaranty and the enforcement thereof), together with interest (in the amounts and to the extent required under such Notes and the Note Purchase Agreement) on amounts recoverable any amount due and owing. Each Guarantor shall be entitled to assume that any person stated in this Guaranty as being entitled to make a demand and receive payment hereunder is so entitled and, in connection therewith, to rely on written communications received from the time when such amounts become due until payment, whether before or after judgment, persons as being genuine and having been duly authorized by all necessary legal action. All payments of principal at the rate applicable the Redemption Price, and interest on the Notes by a Guarantor hereunder shall be paid ratably (based on the outstanding principal amount of interest the Notes) to each holder and all payments of fees, expenses and other amounts shall be paid to the holder that incurred such fees, expenses and other amounts, subject to any limitations set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountLoan Documents.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.
Appears in 1 contract
Guaranty. The undersigned, jointly and severally, guaranty that (a) Guaranty the Seller named in the aforesaid Invoice Purchase and Sale Agreement is and will be the sole and absolute owner of Payment and Performance. The Parent hereby guarantees ----------------------------------- each purported Invoice sold to Holder Buyer thereunder, free of any lien or encumbrance at the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all time of the indebtedness sale thereof to the Buyer and other amounts owing under this Note at all times thereafter; (collectivelyb) each such Invoice shall be bona fide, representing a sale by the "Obligations"), including all such Obligations which would become due but Seller or the rendition of services by the Seller for the operation account debtor named therein in accordance with the underlying agreement between the account debtor and Seller for the amount and on the terms therein set forth and at the time of sale of the automatic stay pursuant to (S)362(a) of Invoices under the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in aforesaid agreement there shall be no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company contingency 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 condition with respect to the payment of such Obligations in default shall, upon demand Invoice unless the Invoice involved has been designated a contingent sale on the schedule delivered with respect thereto as envisioned by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by a letter agreement between 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 Seller 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 Buyer 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.
even date herewith; (c) Waivers by in the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that event the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of Seller shall receive any law, regulation payments or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable checks representing payments with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in partInvoice, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any an account after the Buyer is entitled to receive payment on such Invoice or account, then the Seller shall immediately turn over such check or payment to the Buyer in the original form received by the Seller, together with an identification of the ObligationsInvoice or account to which the check or payment belongs; and (iid) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the timeevent the Seller shall purport to grant any credit, place adjustment or manner of payment of any allowance with respect to an Invoice, it shall promptly notify the Buyer of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentamount and reason therefor.
Appears in 1 contract
Sources: Invoice Purchase and Sale Agreement (Intelligent Medical Imaging Inc)
Guaranty. (a) Guaranty of Payment Each Borrower hereby unconditionally and Performance. The Parent hereby irrevocably, guarantees ----------------------------------- to Holder the full Lender:
(i) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of the Obligations, including unpaid and accrued interest thereon, in each case when due and payable, all according to the terms of this Agreement, the Notes and the other Financing Documents;
(whether ii) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of all other sums and charges which may at stated maturityany time be due and payable in accordance with this Agreement, the Notes or any of the other Financing Documents;
(iii) the due and punctual performance by required pre-payment, by acceleration or otherwise), as well as the performance, other Borrowers of all of the indebtedness other terms, covenants and conditions contained in the Financing Documents; and
(iv) all the other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the CompanyBorrowers.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor obligations and not liabilities of each Borrower as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, under this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest Section 2.3.9 shall be reduced to such maximum permitted amount.
(c) Waivers by absolute and unconditional and joint and several, irrespective of the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective termsgenuineness, regardless validity, priority, regularity or enforceability of any lawthis Agreement, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms the Notes or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company Financing Documents or any other entity circumstance which might otherwise constitute a legal or equitable discharge of a surety or guarantor. Each Borrower in its capacity as a guarantor expressly agrees that the Lender may, in its sole and absolute discretion, without notice to or further assent of such Borrower and without in any way releasing, affecting or in any way impairing the joint and several obligations and liabilities of such Borrower as a guarantor hereunder:
(i) waive compliance with, or any defaults under, or grant any other Person primarily indulgences under or secondarily liable with respect to any of the Financing Documents;
(ii) modify, amend, change or terminate any provisions of any of the Financing Documents;
(iii) grant extensions or renewals of or with respect to the Credit Facilities, the Notes or any of the other Financing Documents;
(iv) effect any release, subordination, compromise or settlement in connection with this Agreement, any of the Notes or any of the other Financing Documents;
(v) agree to the substitution, exchange, release or other disposition of the Collateral or any part thereof, or any other collateral for the Loan or to the subordination of any lien or security interest therein;
(vi) make advances for the purpose of performing any term, provision or covenant contained in this Agreement, any of the Notes or any of the other Financing Documents with respect to which the Borrowers shall then be in default;
(vii) make future advances pursuant to this Agreement or any of the other Financing Documents;
(viii) assign, pledge, hypothecate or otherwise transfer the Commitments, the Obligations, the Notes, any of the other Financing Documents or any interest therein, all as and to the extent permitted by the provisions of this Agreement;
(ix) deal in all suretyship defenses generallyrespects with the other Borrowers as if this Section 2.3.9 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 have against any one or more of the other Borrowers, the Lender, and/or any other guarantor and shall not be conditional or contingent upon pursuit or enforcement by the Lender of any remedies it may have against the Borrowers with respect to this Agreement, the Notes or any of the other Financing Documents, whether pursuant to the terms thereof or by operation of law. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder Lender shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder required to assert make any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to upon any of the Obligations; (ii) any extensionsBorrowers, compromiseor to sell the Collateral or otherwise pursue, refinancingenforce or exhaust its remedies against the Borrowers or the Collateral either before, consolidation concurrently with or renewals of any Obligation; (iii) any change after pursuing or enforcing its rights and remedies hereunder. Any one or more successive or concurrent actions or proceedings may be brought against each Borrower under this Section 2.3.9, either in the timesame action, place if any, brought against any one or manner more of payment the Borrowers or in separate actions or proceedings, as often as the Lender may deem expedient or advisable. Without limiting the foregoing, it is specifically understood that any modification, limitation or discharge of any of the Obligations liabilities or obligations of any one or more of the Borrowers, any other guarantor or any rescissionsobligor under any of the Financing Documents, waiversarising out of, compromiseor by virtue of, refinancingany bankruptcy, consolidation arrangement, reorganization or similar proceeding for relief of debtors under federal or state law initiated by or against any one or more of the Borrowers, in their respective capacities as borrowers and guarantors under this Section 2.3.9, 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 amendments guarantor by reason of any such proceeding, and the Borrowers agree that they shall be liable for the full amount of the obligations and liabilities under this Section 2.3.9, regardless of, and irrespective to, any modification, limitation or modifications discharge of the liability of any one or more of the Borrowers, any other guarantor or any obligor under any of the Financing Documents, that may result from any such proceedings.
(d) Each Borrower, as guarantor under this Section 2.3.9, 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 amount 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 Note Section 2.3.9, the Notes or any of the other agreement evidencing, securing or otherwise executed Financing Documents;
(vi) all errors and omissions in connection with the Lender’s administration of all indebtedness guaranteed by this Section 2.3.9, except errors and omissions resulting from acts of bad faith;
(vii) any right or claim of right to cause a marshalling of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release assets of any entity one or more of the other person primarily or secondarily liable for any Obligation; or Borrowers;
(vviii) any other act or omission of the Lender which might in any manner or to any extent vary changes the scope of the risk as guarantor hereunder; and
(ix) all other notices and demands otherwise required by law which the Borrower may lawfully waive. Within ten (10) days following any request of the Parent Lender so to do, each Borrower will furnish the Lender and such other persons as the Lender may direct with a written certificate, duly acknowledged stating in detail whether or otherwise operate as a release not any credits, offsets or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice defenses exist with respect to the Parentthis Section 2.3.9.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment The Guarantor hereby irrevocably and Performance. The Parent hereby unconditionally, guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all payment obligations of the indebtedness 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 owing payable under this Note (collectively, the "Obligations")Credit Agreement, including all such Obligations which amounts that would become due but for the operation of the automatic stay pursuant to (S)362(aunder Section 362(c) of the Federal United States Bankruptcy Code and or similar provisions under the operation of (S)(S)502(b) and 506(b) laws of the Federal Bankruptcy CodeBahamas, The Netherlands or other applicable law (collectively, the "Guaranteed Obligations"). This guaranty is an absolute, unconditional and continuing guaranty of In the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement event that Holder first attempt to collect any of the Guaranteed Obligations from the Company or resort to ---------------------- shall not be paid when due within any collateral security or other means of obtaining payment. Should the Company default specified grace period provided for in the payment or performance of any of the ObligationsCredit Agreement, the obligations of Guarantor agrees to pay such Guaranteed Obligations within ten Business Days after the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived giving by the Parent. Payments Administrative Agent to the Guarantor and the Process Agent named in Section 15 hereof of written notice (a "Demand") demanding payment by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the HolderGuarantor, provided that in the manner and at the place of event any such payment specified therefor for payments hereunder -------- is required to be made by the CompanyGuarantor hereunder, the Guarantor may cause such obligation or liability to be paid on its behalf by any corporation affiliated with it, including the Obligors, provided that the Guarantor shall nevertheless be unconditionally obligated to pay such obligation or liability if such affiliate, including the Obligors, shall fail timely to pay such obligation or liability.
(b) Parent's Agreement to Pay Enforcement Costs, etcThis Guaranty is a guarantee of payment and not of performance or collection. The Parent ------------------------------------------------ further agrees, obligation of the Guarantor hereunder shall be independent of the obligation of any other Guarantor (as such term is defined in the principal obligor and not as a guarantor only, to pay to Holder, on demandCredit Agreement), all reasonable costs such obligations being joint and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amountseveral.
(c) Waivers The Guarantor shall be subrogated to all rights of the Banks against the Obligors in respect of any amounts paid by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees Guarantor pursuant to the provisions of any instrument evidencingthis Guaranty; provided, securing or otherwise executed in connection with any Obligation and agrees however, that the obligations of the Parent hereunder Guarantor shall not -------- ------- be released entitled to enforce or discharged, in whole or in partreceive any payments arising out of, or otherwise affected by (i) based upon, such right of subrogation until all the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change Guaranteed Obligations shall have been irrevocably and indefeasibly paid in full and no Guaranteed Obligations may arise in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentfuture.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- Notwithstanding anything to Holder the full and punctual payment when due (whether at stated maturitycontrary in this Agreement, by required pre-paymentits execution and delivery of this Agreement, by acceleration or otherwise), as well as Guarantor hereby unconditionally and irrevocably guarantees (the performance, “Guaranty”) to and for the benefit of all of the indebtedness Buyer and other amounts owing under this Note any Buyer Indemnified Parties (collectively, the "Obligations")“Buyer Guaranteed Parties”) the full, complete and timely payment and performance by Seller of each obligation of Seller under this Agreement, including the punctual and complete payment and performance, if, as and when due, by Seller of all such Obligations which would become due but for the operation of the automatic stay pursuant Seller’s payment obligations to (S)362(a) Buyer under this Agreement, including Seller’s indemnification obligations set forth in ARTICLE VIII of the Federal Bankruptcy Code this Agreement, and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment timely satisfaction and performance of all of Seller’s covenants, agreements and obligations contained in this Agreement (all Seller obligations under this Agreement, whether now or hereafter existing, being referred to collectively as the Obligations and not “Seller Guaranteed Obligations”).
(b) The Guaranty shall be enforceable against Guarantor regardless of their collectability only and whether such action is brought against Seller or any other Person or whether Seller or any other Person is joined in no way conditioned upon any requirement such action; provided, however, that Holder first attempt to collect following the Closing, before bringing 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 claim against Guarantor for payment or performance of any of the Seller Guaranteed Obligations, each Buyer Guaranteed Party shall use reasonable best efforts to seek performance or payment by Seller for a period of no less than ninety (90) days from the obligations date on which such Buyer Guaranteed Party initially notifies Seller of such claim or the facts forming the basis of such claim, except where such Buyer Guaranteed Party reasonably anticipates that it could be materially prejudiced by such delay in bringing a claim against Guarantor.
(c) The Guaranty constitutes a guarantee of payment and performance, and not merely of collection, whether or not recovery may be, or hereafter may become, barred by any statute of limitation or otherwise, and is not conditional or contingent upon any event, contingency or circumstance except as expressly set forth in this Agreement. The Seller Guaranteed Obligations will not be reduced, limited, impaired, discharged, deferred, suspended or terminated by any proceeding, voluntary or involuntary, involving the bankruptcy, insolvency, receivership, reorganization, liquidation or arrangement of Seller or by any defense which Seller may have by reason of the Parent order, decree or decision of any court or administrative body resulting from any such proceeding. The Buyer Guaranteed Parties shall not be obligated to file any claim relating to the Seller Guaranteed Obligations in the event that Seller becomes subject to a bankruptcy, reorganization, insolvency or similar proceeding, and the failure of any Purchaser Guaranteed Party to so file shall not affect the Seller Guaranteed Obligations hereunder. In the event that any performance or payment to a Buyer Guaranteed Party in respect of the Seller Guaranteed Obligations is rescinded, annulled, set aside, invalidated, declared to be fraudulent or preferential or must otherwise be returned (as applicable) for any reason whatsoever, Guarantor shall remain liable hereunder with respect to such Seller Guaranteed Obligations in default shallas if such performance or payment had not been made. Guarantor hereby expressly, upon demand by Holder, become immediately due irrevocably and payable unconditionally waives any defenses which would otherwise operate to Holder, without demand impair 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 diminish Guarantor’s liability under or expended by Holder in connection with the ObligationsGuaranty, 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 including arising by reason 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, notice of the acceptance of this guarantee and of the Seller Guaranteed Obligations, presentment, demanddemand for payment or performance, notice of non-performance, default, dishonor and protest, notice of acceptance, notice of any the Seller Guaranteed Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law Law or other similar law Law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the ObligationsSeller, and all suretyship defenses generally. Without limiting the generality of the foregoing.
(d) Notwithstanding any payment made by Guarantor hereunder, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder Guarantor shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder entitled to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect be subrogated to any of the rights of any Buyer Guaranteed Party against Seller or any right of offset held by any Buyer Guaranteed Party for the payment of the Seller Guaranteed Obligations; , nor shall Guarantor seek or be entitled to seek any contribution or reimbursement from Seller in respect of payments made by Guarantor hereunder, in each case until all of the Seller Guaranteed Obligations are satisfied in full, and in the case of payment obligations, paid in full in cash. If any amount shall be paid to Guarantor on account of such subrogation rights at any time when all of the Seller Guaranteed Obligations shall not have been paid in full, such amount shall be held by Guarantor in trust for the Buyer Guaranteed Parties, segregated from other funds of Guarantor, and shall, forthwith upon receipt by Guarantor, be turned over to Buyer to be applied against the Seller Guaranteed Obligations.
(e) Guarantor represents and warrants as of the date of this Agreement and as of Closing that (i) Guarantor has full power and authority to execute and deliver this Agreement and to perform the obligations under and in connection with the Guaranty, and the execution, delivery and performance of this Agreement by Guarantor has been duly authorized by all necessary action on the part of Guarantor, (ii) this Agreement constitutes a legal, valid and binding obligation of Guarantor enforceable in accordance with its terms, subject to any extensionsapplicable bankruptcy, compromiseinsolvency, refinancingreorganization, consolidation moratorium or renewals similar Laws now or hereafter in effect relating to creditors’ rights generally or to general principles of any Obligationequity; (iii) the execution, delivery and performance of the Guaranty by Guarantor does not contravene any change in the time, place provision of Guarantor’s Organizational Documents or manner of payment of any Law or Contract binding on Guarantor or any of its assets; and (iv) Guarantor has the financial capacity to pay and perform all of its obligations under the Guaranty, and all funds necessary for Guarantor to fulfill the Seller Guaranteed Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of shall be available to Guarantor.
(f) Article X shall apply mutatis mutandis to the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed Guarantor in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentGuaranty.
Appears in 1 contract
Guaranty. To induce the Company to enter i▇▇▇ ▇▇▇▇ ▇▇▇eement, Komats▇ ▇▇▇. (a) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise▇▇▇ "Guarantor"), as well primary obligor and not merely as the performancea surety, of all hereby absolutely, unconditionally and irrevocably guarantees full and timely payment and performance of the indebtedness duties, obligations and other amounts owing responsibilities of Parent and Merger Sub specified in this Agreement or arising out of or relating to this Agreement as and when required to be performed hereunder, including the obligation of Parent, subject to the terms and satisfaction of the conditions set forth in this Agreement, to, at or prior to the Effective Time, make available or cause to be made available to the Paying Agent cash in an amount equal to the Payment Fund and to pay any fees and expenses of Parent or Merger Sub, any damages arising from the breach by Parent or Merger Sub of their obligations under this Note Agreement and any other obligations of Parent or Merger Sub (collectively, the "Guaranteed Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant and shall be deemed to (S)362(a) of the Federal Bankruptcy Code have made, and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absoluteshall be liable for, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations representations and not warranties, covenants and other agreements of their collectability only Parent contained herein. The Guarantor acknowledges and agrees that this guaranty is in no way conditioned upon a primary obligation of the Guarantor, and that the Company shall be entitled to make any requirement that Holder first attempt to collect demand hereunder, and pursue all of its rights and remedies, against all or any of the Obligations from Guarantor, Parent and Merger Sub, whether or not the Company has made any demand or resort to pursued any collateral security remedies against Parent or other means Merger Sub. This is a guarantee of obtaining paymentpayment and performance, and not merely of collectability. Should the Company default in the payment or performance of any of the Obligations, the 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 Guarantor under this guaranty shall be made enforceable against the Guarantor to the Holder, in same extent as if the manner Guarantor were the primary obligor (and at the place of payment specified therefor for payments hereunder to be made by the Company.
(bnot merely a surety) Parent's Agreement to Pay Enforcement Costs, etcunder this Agreement. The Parent ------------------------------------------------ further agrees, Guarantor hereby waives 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 itself promptness, diligence, notice of the acceptance of this guarantee and of the Guaranteed Obligations, presentment, demanddemand for payment, notice of non-performance, default, dishonor and protest, notice of acceptance, notice of any Guaranteed Obligations incurred and all other notices of any kindincurred, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generallydefenses. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and The Guarantor agrees that the obligations of the Parent Guarantor hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure or delay on the part of Holder the Company to assert any claim or demand or to enforce any right or remedy against the Company Parent or any other entity or other Person primarily or secondarily liable with respect to any of the ObligationsMerger Sub; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Guaranteed Obligations or any rescissions, waiverswaiver, compromise, refinancing, consolidation or other amendments amendment or modifications modification of any of the terms or provisions of this Note Agreement made in accordance with the terms thereof or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made Guaranteed Obligations; (iii) any change in accordance with the terms hereofcorporate existence, structure or ownership of the Guarantor, Parent, Merger Sub or any other Person interested in the transactions contemplated by this Agreement; (iv) the addition, substitution or release adequacy of any entity or other person primarily or secondarily liable for means the Company may have of obtaining payment related to any Obligation; or of the Guaranteed Obligations, (v) any voluntary or involuntary liquidation, dissolution, sale or other act disposition of all or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of substantially all of the Obligations)assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, arrangement, composition with creditors or readjustment, or other similar proceeding or any other inability to pay or perform affecting the Guarantor, Parent, Merger Sub or any other Person interested in the transactions contemplated by this Agreement; (vi) the existence of any claim, set-off or other right which Guarantor may have at any time against the Company, Parent, Merger Sub or any other Person interested in the transactions contemplated by this Agreement, whether in connection with such transactions or otherwise; (vii) the adequacy of any other means the Company may have of obtaining payment of the Guaranteed Obligations or (viii) the value, genuineness, validity, regularity, illegality or enforceability of this Agreement or any agreement or instrument related to this Agreement; provided, however, that the Guarantor shall be entitled to all rights, defenses and counterclaims of which Parent and/or Merger Sub with respect to any Claim for enforcement of this Guaranty. This Guaranty may not be done without notice revoked or terminated and shall remain in full force and effect and shall be binding on Guarantor, its successors and assigns until all amounts payable by Guarantor under this Guaranty with respect to the Parent.Guaranteed Obligations have been indefeasibly paid in full. The Guarantor acknowledges that it will receive substantial direct and indirect benefits from the transactions contemplated by this Agreement and that the waivers by the Guarantor set forth in this Guarantee are knowingly made in contemplation of such benefits. For the avoidance of doubt, if Parent or Merger Sub is obligated to consummate the Merger pursuant to the terms and conditions of this Agreement, no further act or thing need occur to establish the Guarantor's liability hereunder, and no act or thing, except full performance of the Guaranteed Obligations, shall in any way exonerate or discharge the obligations of the Guarantor hereunder or modify, limit or release the Guarantor's liability hereunder. The Company may, at any time, take any and all actions available hereunder or under applicable law to enforce Guarantor's obligations hereunder, regardless of whether action is brought against Parent or Merger Sub or whether Parent or Merger Sub is joined in any such action or actions. All payments by the Guarantor pursuant to this Guaranty shall be made in lawful money of the United States in immediately available funds. Guarantor promises and undertakes to make all payments hereunder free and clear of any deduction, offset, defense, claim or counterclaim of any kind. In the event that any payment hereunder is rescinded or must otherwise be returned for any reason whatsoever, Guarantor shall remain liable hereunder as if such payment had not been made. The Guarantor may not assign or delegate its rights, interests or obligations hereunder to any other person (by operation of law or otherwise) without the prior written consent of the Company. The terms of Sections 9.02, 9.07 and 9.11 of this Agreement shall apply to this Guaranty mutatis mutandis. KOMATSU LTD. By: /s/ Tetsuji Ohashi Name: Tetsuji Ohashi Title: President and CEO EXHIBIT A
Appears in 1 contract
Sources: Merger Agreement (Joy Global Inc)
Guaranty. (a) Guaranty of Payment The Guarantor hereby unconditionally and Performance. The Parent hereby irrevocably guarantees ----------------------------------- to Holder the full and punctual payment Company, upon ten (10) Banking Days' written notice by the Company, satisfaction when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent Marketer under the Agreement (the "Guaranteed Obligations"); provided that, except as otherwise indicated in Section 14 hereof, in no event shall the Guarantor’s obligations hereunder with respect to the Guaranteed Obligations at any time exceed the Guaranteed Amount (as defined below) at such time. In no event shall Guarantor be subject hereunder to punitive, consequential, special, incidental or indirect losses or damages of any nature whatsoever, including, but not limited to, loss of profits, whether arising under the law of contracts, torts (including, without limitation, negligence of every kind and strict liability, without fault), or property, or at common law or in equity in respect of the Guaranteed Obligations. The Guarantor agrees that, notwithstanding any stay, injunction or other prohibition preventing the payment of all or any portion of the Guaranteed Obligations, by any party other than the Guarantor, such Guaranteed Obligations in default shall, upon demand by Holder, become immediately (whether or not then due and payable to Holder, without demand or notice by the Guarantor) shall nevertheless become due and payable by the Guarantor for the purposes of this Guaranty upon the occurrence of any nature, all event or condition giving rise to the obligation of which are expressly waived the Guarantor to pay such Guaranteed Obligations. The liability of the Guarantor under this Guaranty is a guaranty of payment and not of collection. The liability of the Guarantor under this Guaranty is a direct obligation and is not contingent upon any action or inaction by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on Marketer or 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 Companyother party.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, Except 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 otherwise indicated 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 Section 14 hereof, provided that if such interest exceeds the maximum amount permitted required to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom Guarantor pursuant to Act. The Parent agrees ---------------------------------------------- that this Guaranty shall not exceed an amount (the Obligations will be "Guaranteed Amount") equal to (i) Fifteen Million Dollars ($15,000,000) minus (ii) the aggregate of all amounts previously 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 by 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 Guarantor under this Guaranty (other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees than amounts paid pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms Section 14 hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.
Appears in 1 contract
Sources: Guaranty
Guaranty. In order to induce QCTAP to accept Agent P.O.s, Buyer hereby unconditionally and irrevocably guarantees the prompt and complete performance and payment of all obligations of the Agents under this Agreement. If any Agent fails to perform any of its obligations in accordance with this Agreement, Buyer shall immediately pay for all amounts due from any such Agent and otherwise perform all of such Agent’s obligations under this Agreement. The guaranty set forth in this Section is absolute and unconditional and shall survive the termination or expiration of this Agreement. This is an absolute guaranty of payment and performance and not a guaranty of collection. In the event of breach of this Agreement by any Agent, QCTAP may suspend performance under this Agreement without liability of any kind, and may terminate this Agreement immediately upon written notice. The obligations hereunder are independent of the obligations of any Agent, and a separate action or actions may be brought against Buyer whether or not action is brought against any such Agent or whether or not any such Agent may be joined in any such action. With respect to this Section (Buyer’s Agent), Buyer waives any right to require QCTAP to (a) Guaranty of Payment and Performanceproceed against any Agent or other person: or (b) pursue any other remedy in QCTAP’s power whatsoever. The Parent hereby guarantees ----------------------------------- liability of Buyer under this Section shall not be deemed to Holder the full and punctual payment when due (whether at stated maturitybe waived, released, discharged, impaired or affected by required pre-paymentany alteration, by acceleration amendment, acceleration, extension, modification, waiver or otherwise), as well as the performance, of all change of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation amount of the automatic stay pursuant to (S)362(a) lime or manner of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of any Agent. Buyer’s liability shall not be affected by the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand insolvency or notice bankruptcy of any nature, all Agent and liability will be re-instated against Buyer if any payment by any Agent must be returned by QCTAP upon the insolvency or bankruptcy of which are expressly waived by the Parentany Agent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on Buyer waives any number defense 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 expensesany Agent, including by reason of the allocated cost cessation from any cause whatsoever of staff counsel) incurred the liability of any such Agent. Buyer waives any setoff, defense or expended by Holder in connection with counterclaim that any Agent may have against QCTAP. Buyer waives any defense arising out of the Obligationsabsence, this impairment or loss of any right of reimbursement or subrogation or any other rights against any Agent. Buyer waives all presentments, demands for performance, notices of nonperformance, protests, notices of protest, notices of dishonor, and notices of acceptance of the 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 this Section and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligationsexistence, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in partcreation, or otherwise affected by (i) the failure incurring of Holder to assert any claim new or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made additional indebtedness. All Agent’s P.O.s must be in accordance with the terms hereof; (iv) the and conditions of this Agreement. In addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary each Agent P.O. must contain the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parent.following language:
Appears in 1 contract
Sources: Components Supply Agreement (New Beginnings Acquisition Corp.)
Guaranty. Each of REIT and the Sponsor (afor purposes of this Section 6.19 only, collectively referred to as “Guarantor”) Guaranty of Payment hereby jointly, severally, unconditionally and Performance. The Parent hereby guarantees ----------------------------------- irrevocably guaranties to Holder Lender, the full and punctual payment and performance when due (due, whether at stated maturity, by required pre-payment, maturity or by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts obligations of Borrower to Lender that may become owing by Borrower under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation any of the automatic stay pursuant Loan Documents (hereinafter referred to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Codeas “Payment Obligations”). This guaranty is an absolute, unconditional a present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility, and is in no way conditioned upon Lender shall not be required to prosecute collection, enforcement or other remedies against Borrower or any requirement that Holder first attempt to collect any other guarantor of the Obligations from the Company Payment Obligations, or to enforce or resort to any collateral security for the repayment of the Payment Obligations or other means of obtaining rights or remedies pertaining thereto, before calling on Guarantor for payment. Should If for any reason Borrower shall fail or be unable to pay, punctually and fully, any of the Company default Payment Obligations, each Guarantor, subject to the limitations set forth in Section 6.19(b) below, shall pay such obligations to Lender in full immediately upon demand. One or more successive actions may be brought against any of REIT or the payment Sponsor, as often as Lender deems advisable, until all of the Payment Obligations are paid in full (except that Sponsor’s obligations hereunder are subject to the limitations set forth in Section 6.19(b) below). Each Guarantor agrees that Payment Obligations of such Guarantor shall be a primary obligation, shall not be subject to any counterclaim, set off, abatement, deferment or performance defense based upon any claim that Guarantor may have against Lender, Borrower, any other Guarantor or any other person or entity (except that Sponsor’s obligations hereunder are subject to the limitations set forth in Section 6.19(b) below), and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof), including without limitation: (i) any lack of validity or enforceability of any of the ObligationsLoan Documents; (ii) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein; (iii) any furnishing, exchange, substitution or release of any Collateral, or any failure to perfect any lien in the Collateral; (iv) any failure, omission or delay on the part of Borrower, Guarantor, any other guarantor of the Payment Obligations or of Lender or Agent to conform or comply with any term of any of the Loan Documents or any failure of Agent to give notice of any Event of Default; (v) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Parent hereunder Loan Documents; (vi) any action or inaction by Lender or Agent under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of Lender or Agent to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of Lender or Agent; (vii) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshalling of assets and liabilities or similar events or proceedings with respect to Borrower, Guarantor or any other guarantor of the Payment Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding; (viii) any merger or consolidation of Borrower or any Guarantor into or with any entity, or any sale, lease or transfer of any of the assets of Borrower, Guarantor or any other guarantor of the Payment Obligations to any other person or entity; (ix) any change in default shallthe ownership of Borrower or any Guarantor or any change in the relationship between Borrower, upon demand Guarantor or any other guarantor of the Payment Obligations, or any termination of any such relationship; (x) any release or discharge by Holderoperation of law of Borrower, become immediately due Guarantor or any other guarantor of the Payment Obligations from any obligation or agreement contained in any of the Loan Documents; or (xi) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and payable whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against Borrower or Guarantor to Holder, without demand or the fullest extent permitted by law. Guarantor expressly and unconditionally waives (i) notice of any natureof the matters referred to in Section 6.19(a), (ii) all of notices which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number statute, rule 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 otherwise, now or hereafter in effect, to preserve intact any rights against Guarantor, including, without limitation, any demand, presentment and protest, proof of notice of non payment under any of the Loan Documents and notice of any Event of Default or any failure on the part of Borrower, Guarantor or any other guarantor of the Payment Obligations to perform or comply with any covenant, agreement, term or condition of any of the Loan Documents, (iii) any right to require the marshalling of assets of the Company enforcement, assertion or exercise against Borrower, Guarantor or any other entity or other Person primarily or secondarily liable with respect to any guarantor of the Obligations, and all suretyship defenses generally. Without limiting the generality Payment Obligations of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against conferred under any of the Company Loan Documents, (iv) any requirement of diligence on the part of any person or entity, (v) to the fullest extent permitted by law and except as otherwise expressly provided in this Guaranty or the other Loan Documents, any claims based on allegations that Lender or Agent has failed to act in a commercially reasonable manner or failed to exercise Lender’s or Agent’s so called obligation of good faith and fair dealing, (vi) any requirement to exhaust any remedies or to mitigate the damages resulting from any default under any of the Loan Documents, and (vii) any notice of any sale, transfer or other disposition of any right, title or interest of Lender or Agent under any of the Loan Documents. Until the Payment Obligations are paid in full and all periods under applicable bankruptcy law for the contest of any payment by Guarantor or Borrower as a preferential or fraudulent payment have expired, Guarantor knowingly, and with advice of counsel, waives, relinquishes, releases and abandons all rights and claims to indemnification, contribution, reimbursement, subrogation and payment which Guarantor may now or hereafter have by and from Borrower and the successors and assigns of Borrower, for any payments made by Guarantor to Agent or Lender, including, without limitation, any rights which might allow Borrower, Borrower’s successors, a creditor of Borrower, or a trustee in bankruptcy of Borrower to claim in bankruptcy or any other entity similar proceedings that any payment made by Borrower or other Person primarily Borrower’s successors and assigns to Lender or secondarily liable with respect to any Agent was on behalf of or for the Obligations; (ii) any extensionsbenefit of Guarantor and that such payment is recoverable by Borrower, compromisea creditor or trustee in bankruptcy of Borrower as a preferential payment, refinancingfraudulent conveyance, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note an insider or any other agreement evidencing, securing classification of payment which may otherwise be recoverable from Lender or otherwise executed Agent. If one or more attorneys is retained to represent Lender or Agent in any proceedings whatsoever in connection with any of the Obligations made this guaranty, then Guarantor shall pay to Lender and Agent upon demand all fees, costs and expenses incurred by Lender and Agent in accordance with the terms hereof; (iv) the additionconnection therewith, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in fullincluding, without limitation, reasonable attorney’s fees, court costs and filing fees, in cash, of addition to all of the Obligations), all of which may be done without notice to the Parentother amounts due hereunder.
Appears in 1 contract
Sources: Revolving Credit Agreement (Behringer Harvard Reit I Inc)
Guaranty. (a) Guaranty of Payment The undersigned Guarantor, as primary obligor and Performance. The Parent hereby not merely as surety, unconditionally and irrevocably guarantees ----------------------------------- to Holder the full and punctual payment when due Banks (whether at stated maturity, by required pre-i) the payment, by acceleration or otherwise), as well as the performancewhen due, of all the obligations of Borrower under Section 6.4.2(h) of the indebtedness Credit Agreement, (ii) without duplication of amounts paid pursuant to clause (i) above, the payment, when due, of the obligations of Borrower under Section 5.17.3(y) of the Credit Agreement and other amounts owing (iii) if Borrower is unable to obtain a disbursement of Loan proceeds under this Note the Credit Agreement for any Funded Turbine for a period of 60 consecutive days after a request for the same pursuant to a Turbine Purchase Drawdown Certificate delivered pursuant to Section 3.6 of the Credit Agreement, the prompt payment, when due, of the Turbine Costs for which funds were requested in such Turbine Purchase Drawdown Certificate, in each case together with the payment of all expenses incurred by Administrative Agent or the Banks in enforcing any of such obligations and liabilities or the terms hereof, including, without limitation, reasonable fees and expenses of legal counsel (collectively, the "Obligations"), and agrees that if for any reason Borrower shall fail to pay when due any of such Obligations, Guarantor will pay the same forthwith. Guarantor waives notice of acceptance of this Guaranty and of any obligation to which it applies or may apply under the terms hereof, and waives diligence, presentment, demand of payment or performance, notice of dishonor or non-payment or non-performance, protest, notice of protest, of any such obligations, suit or taking other action by the Banks against, and giving any notice of default or other notice to, or making any demand on, any party liable thereon (including all such Obligations which would become due but for the operation Guarantor).
(b) This Guaranty is a primary obligation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code Guarantor and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional unconditional, continuing and continuing irrevocable guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility, and is in no way conditioned on or contingent upon any requirement that Holder first attempt to collect enforce in whole or in part Borrower's or any other Portfolio Entity's liabilities and obligations to the Banks. If Borrower shall fail to pay any of the Obligations to the Banks as and when they are due, Guarantor shall forthwith pay such Obligations immediately (in the case of payment obligations, in immediately available funds). Each failure by Borrower to pay any Obligations shall give rise to a separate cause of action herewith, and separate suits may be brought hereunder as each cause of action arises.
(c) The Banks may, at any time and from time to time (whether or not after revocation or termination of this Guaranty) without the Company consent of or resort notice to Guarantor, except such notice as may be required by the Credit Documents or applicable law which cannot be waived, without incurring responsibility to Guarantor, without impairing or releasing the obligations of Guarantor hereunder, upon or without any collateral security terms or conditions and in whole or in part, (i) change the manner, place and terms of payment or change or extend the time of payment of, or renew or alter, any Obligation, or any obligations and liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof or in any manner modify, amend or supplement the terms of the Credit Documents, any documents, instruments or agreements executed in connection therewith, in each case with the consent of Borrower or such other means relevant Portfolio Entity, if required by the Credit Documents, and the guaranty herein made shall apply to the Obligations changed, extended, renewed, modified, amended, supplemented or altered in any manner; (ii) exercise or refrain from exercising any rights against Borrower, any other Portfolio Entity or others (including Guarantor) or otherwise act or refrain from acting; (iii) add or release any other guarantor from its obligations without affecting or impairing the obligations of obtaining payment. Should Guarantor hereunder; (iv) settle or compromise any Obligations and/or any obligations and liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the Company default in payment or performance of all or any part thereof to the payment or performance of any obligations and liabilities which may be due to the Banks or others; (v) sell, exchange, release, surrender, realize upon or otherwise deal with in any manner or in any order any property by whomsoever pledged or mortgaged to secure or howsoever securing the Obligations or any liabilities or obligations (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof and/or any offset thereagainst; (vi) apply any sums by whomsoever paid or howsoever realized to any obligations and liabilities of Borrower or any other Portfolio Entity to the Banks under the Credit Documents in the manner provided therein regardless of what obligations and liabilities remain unpaid; (vii) consent to or waive any breach of, or any act, omission or default under, the Credit Documents or otherwise amend, modify or supplement (with the consent of Borrower or such other relevant Portfolio Entity, if required by the Credit Documents) the Credit Documents or any of such other instruments or agreements; and/or (viii) act or fail to act in any manner referred to in this Guaranty which may deprive Guarantor of its right to subrogation against Borrower to recover full indemnity for any payments or performances made pursuant to this Guaranty or of its right of contribution against any other party.
(d) No invalidity, irregularity or unenforceability of the Obligationsobligations or liabilities hereby guaranteed shall affect, impair or be a defense to this Guaranty, which is a primary obligation of Guarantor.
(e) This is a continuing Guaranty and all obligations to which it applies or may apply under the obligations terms hereof shall be conclusively presumed to have been created in reliance hereon. In the event that, notwithstanding the provisions of the Parent hereunder Section 1(a) hereof, this Guaranty shall be deemed revocable in accordance with applicable law, then any such revocation shall become effective only upon receipt by Administrative Agent of written notice of revocation signed by Guarantor. No revocation or termination hereof shall affect in any manner rights arising under this Guaranty with respect to such Obligations in default shall, upon demand arising prior to receipt by Holder, become immediately due and payable to Holder, without demand or Administrative Agent of written notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be such revocation or termination.
(i) Except as otherwise required by ▇▇▇▇▇▇ on any number of occasions. All payments law, each payment required to be made by Guarantor to the Parent Banks hereunder shall be made without deduction or withholding for or on account of Taxes. If such deduction or withholding is so required, Guarantor shall, upon notice thereof from Administrative Agent, (A) pay the amount required to be deducted or withheld to the Holderappropriate authorities before penalties attach thereto or interest accrues thereon, (B) on or before the 60th day after payment of such amount, forward to the Banks an official receipt evidencing such payment (or a certified copy thereof), and (C) in the manner and at case of any such deduction or withholding, forthwith pay to Administrative Agent for the place account of payment specified therefor for payments hereunder the Banks such additional amount as may be necessary to be made ensure that the net amount actually received by the CompanyBanks is free and clear of such Taxes, including any Taxes on such additional amount, is equal to the amount that the Banks would have received had there been no such deduction or withholding.
(bii) Parent's Agreement to Pay Enforcement CostsAs used herein, etc. The Parent ------------------------------------------------ further agreesthe term "Tax" means any present or future tax, as the principal obligor and not as a guarantor onlylevy, to pay to Holderimpost, on demandduty, all reasonable costs and expenses charge, assessment or fee of any nature (including court costs interest, penalties and reasonable legal expensesadditions thereto) that is imposed by any government or other taxing authority in respect of any payment under this Guaranty other than (A) any income, including franchise or similar tax imposed upon the allocated cost gross or net income of staff counsel) incurred Administrative Agent 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 any Bank by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective termsUnited States, regardless of any lawNew York State, 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 where Administrative Agent or any other entity Bank is organized and/or the jurisdiction in which is located any office from or other Person primarily at which Administrative Agent or secondarily liable with respect to any Bank is making or maintaining any Loans or receiving any payments under any of the Obligations, Credit Documents and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (iiB) any extensionsstamp, compromiseregistration, refinancing, consolidation documentation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentsimilar tax.
Appears in 1 contract
Sources: Credit Agreement (Calpine Corp)
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Note Agreement or any other document, including instrument or agreement executed in connection therewith (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other document, instrument or agreement executed in connection therewith (collectively, the “Financing Documents”) and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 1 contract
Sources: Note Purchase Agreement (Empire State Realty OP, L.P.)
Guaranty. Subject to the provisions of this Article Ten, each Guarantor hereby unconditionally guarantees to the Trustee and to each Holder of a Security authenticated and delivered by the Trustee (ai) Guaranty of Payment and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full due and punctual payment of the principal of, premium, if any, and interest on such Security, when and as the same shall become due and payable, whether at maturity, by acceleration, declaration or otherwise, the due and punctual payment of interest on the overdue principal and interest on the Securities, to the extent lawful, and the due and punctual performance of all other obligations of the Company to the Holders or the Trustee all in accordance with the terms of such Security and of this Indenture, and (ii) in the case of any extension of time of payment or renewal of any Securities or any of such other obligations, that the same will be promptly paid in full when due (whether or performed in accordance with the terms of the extension or renewal, at stated maturity, by required pre-paymentacceleration, by acceleration declaration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of The Guarantors hereby agree that their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made absolute and unconditional, irrespective of, and shall be unaffected by, any invalidity, irregularity or unenforceability of any such Security or this Indenture, any failure to enforce the provisions of any such Security or this Indenture, any waiver, modification or indulgence granted 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 Company with respect thereto, by the Holder of such Security or the Trustee, or any other circumstances which may otherwise constitute a legal or equitable discharge of surety or guarantor. The Parent waives promptness, Guarantors hereby waive diligence, presentment, demand, protest, notice filing of acceptance, notice claims with a court in the event of any Obligations incurred and all other notices merger or bankruptcy 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 effectthe Company, any right to require proceeding filed against the marshalling Company, the benefit of assets of the Company discussion, protest or any other entity or other Person primarily or secondarily liable notice with respect to any such Security or the Indebtedness evidenced thereby and all demands whatsoever (except as specified above), and covenant that this Guaranty will not be discharged as to any such Security except by payment in full of the Obligationsprincipal thereof, premium, if any, and all suretyship defenses generallyinterest thereon. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and Each Guarantor further agrees that as between such Guarantor, on the obligations of one hand, and the Parent hereunder shall not be released or dischargedHolders and the Trustee, in whole or in parton the other hand, or otherwise affected by (i) the failure maturity of Holder to assert the obligations guaranteed hereby may be accelerated as provided in Article Five hereof for the purposes of this Guaranty, notwithstanding any claim or demand or to enforce any right or remedy against the Company or any other entity stay, injunction or other Person primarily or secondarily liable with prohibition preventing such acceleration in respect to any of the Obligations; obligations guaranteed hereby, and (ii) any extensions, compromise, refinancing, consolidation or renewals in the event of any Obligation; declaration of acceleration of such obligations as provided in Article Five hereof, such obligations (iiiwhether or not due and payable) any change in shall forthwith become due and payable by each Guarantor for the timepurpose of this Guaranty. In addition, place or manner without limiting the foregoing provisions, upon the effectiveness of an acceleration under Article Five, the Trustee may make a demand for payment of any of on the Obligations Securities under each or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of Guaranty provided for in this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentArticle Ten and not previously discharged.
Appears in 1 contract
Sources: Senior Secured Note Indenture (SLM International Inc /De)
Guaranty. (a) Guaranty For Value Received, CONN APPLIANCES, INC., a Texas corporation, hereinafter called "Guarantor", in consideration of Payment the premises and Performance. The Parent hereby guarantees ----------------------------------- to Holder of the full and punctual payment when due benefits that will accrue (whether at stated maturity, by required pre-payment, by acceleration directly or otherwise)indirectly) to Tenant and Guarantor from that certain Shopping Center Lease Agreement, as well amended, between Fiesta Mart, Inc. as "Landlord", and C.A.I., L.P. as "Tenant", covering approximately 88,293 square feet in the performance, of all of the indebtedness and other amounts owing under this Note Beaumont Shopping Center (collectively, the "ObligationsCenter"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇ ▇▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom , ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇, (the "Original Lease"), which consideration is acknowledged by Guarantor to Act. The Parent agrees ---------------------------------------------- be new, independent and sufficient, and as a material inducement to Landlord to enter that certain First Amendment to Lease Agreement ("First Amendment") pertaining to Tenant leasing an additional 18,500 square feet in the Obligations Center, Guarantor does hereby unconditionally, fully and absolutely guarantee without offset or deduction, the prompt payment when due of all sums payable by Tenant under the Original Lease and First Amendment (the Original Lease and First Amendment being hereafter collectively referred to as the "Lease"), and to do or cause to be done, or perform or cause to be performed, all duties, covenants and obligations of Tenant under the Lease, for the full Lease Tern and any renewals thereof, this Guaranty constituting an absolute and unconditional guaranty (1) of full payment, and not of collection of all sums due under the Lease, and (2) that Tenant will be paid perform punctually and performed strictly faithfully under and in accordance with their respective termsthe terns of the Lease. Guarantor further agrees to indemnify and hold harmless Landlord from any and all losses, regardless damages, costs, and expenses (including, without limitation, costs of court and attorney's fees incurred by Landlord) in the event of any lawdefault or breach by Guarantor of its obligations under this Guaranty. Guarantor hereby agree that Guarantor, regulation as principal obligor, will pay or order now otherwise provide for or hereafter in effect in bring about promptly when due all payments required of Tenant under the Lease and the timely and full performance of all duties, covenants and obligations of Tenant under the Lease, notwithstanding any jurisdiction fact or circumstance, including, but not limited to, (1) the liquidation, dissolution, receivership, insolvency or bankruptcy of Tenant, (2) the making by Tenant of an assignment for the benefit of its creditors, (3) the reorganization, arrangement, composition or readjustment of Tenant, or (4) any proceeding affecting any of such terms the status, existence or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generallyTenant. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation Guarantor expressly and specifically agrees that the obligations of the Parent hereunder it will not be necessary or required, and Guarantor shall not be released entitled to require, that Landlord shall file suit or discharged, in whole proceed to 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 obtain a judgment against the Company Tenant or any other entity party, or other Person primarily or secondarily liable with respect to make any effort of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note collection from Tenant or any other agreement evidencingparty, securing or otherwise executed exercise any remedy or remedies provided in connection with any the Lease or by law before, or as a condition precedent to, enforcing the liability of the Obligations made in accordance Guarantor hereunder; and Guarantor, knowingly and with the terms hereof; express intention of extinguishing legal rights (ivif any may exist), hereby waives any and all rights, whether existing by rule, statute, general law, equity or otherwise, to assert or require that (1) Landlord previously seek or obtain judgment against Tenant or any other party prior to Landlord's suing Guarantor for the additionenforcement of this Guaranty, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v2) Landlord joins Tenant or any other act or omission which might party in any manner or to any extent vary suit against Guarantor for the risk enforcement of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentthis Guaranty.
Appears in 1 contract
Sources: Lease Agreement (Conns Inc)
Guaranty. The Guarantor hereby irrevocably and unconditionally guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make‑Whole Amount, if any, Modified Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Note Agreement or any other instrument referred to therein, including (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity guarantor of the Notes or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting the generality Guarantor agrees to pay the same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. The Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement. The Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by the Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Guaranty Agreement. The Guarantor hereby acknowledges and agrees that the Guarantor’s liability hereunder is joint and several with any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment 27.01 To induce Landlord to enter into this Lease, D▇▇▇▇ ▇▇▇▇▇ and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by D▇▇▇▇▇ ▇▇▇▇▇▇▇ on (individually and collectively, jointly and severally, “Guarantor”) in accordance with and subject to the provisions of this Article 27 (this “Guaranty”), jointly and severally, absolutely, unconditionally and irrevocably guarantees, as a primary obligor and not merely as a surety: (i) the full and prompt payment of all Tenant Charges, and (ii) the full and timely performance of all covenants, terms, conditions, obligations, indemnities, and agreements to be performed by Tenant under this Lease (all of the obligations described in clauses (i) and (ii), collectively, the “Obligations”).
27.02 Guarantor agrees with Landlord that (i) any number action, suit or proceeding of occasions. All payments any kind or nature whatsoever (an “Action”) commenced by Landlord against Guarantor to collect any Tenant Charges due under this Lease for any month or months shall not prejudice in any way Landlord’s rights to collect any such amounts due for any subsequent month or months throughout the Parent term of this Lease in any subsequent Action, (ii) Landlord may, at its option, without prior notice or demand, join Guarantor in any Action against Tenant in connection with or based upon this Lease or any of the Obligations, (iii) Landlord may, to the extent permitted under this Guaranty, seek and obtain recovery against Guarantor in an Action against Tenant or in any independent Action against Guarantor without Landlord first asserting, prosecuting, or exhausting any remedy or claim against Tenant or against any security of Tenant held by Landlord under this Lease, and (iv) Guarantor will be conclusively bound in any jurisdiction by a judgment in any Action by Landlord against Tenant, as if Guarantor were a party to such Action, even though Guarantor is not joined as a party in such Action.
27.03 This Guaranty is an absolute and unconditional guaranty of payment and of performance, and not of collection, and shall be enforceable against Guarantor without the necessity of the commencement by Landlord of any Action against Tenant, and without the necessity of any notice of nonpayment, nonperformance or nonobservance, or any notice of acceptance of this Guaranty, or of any other notice or demand to which Guarantor might otherwise be entitled, all of which Guarantor hereby expressly waives in advance.
27.04 This Guaranty is a continuing guarantee and will remain in full force and effect notwithstanding, and the liability of Guarantor hereunder shall be made absolute and unconditional irrespective of: (i) any modifications, amendments or termination of this Lease, (ii) any releases or discharges of Tenant other than the full release and complete discharge of all of the Obligations, (iii) any extension of time that may be granted by Landlord to Tenant, (iv) any assignment or transfer of all of any part of Tenant’s interest under this Lease, (v) any further subletting of the Premises, (vi) any other dealings or matters occurring between Landlord and Tenant, (viii) the taking by Landlord of any additional guarantees from other persons or entities, (viii) the releasing by Landlord of any other guarantor, (ix) Landlord’s release of any security provided under this Lease, or (x) Landlord’s failure to perfect any landlord’s lien or other security interest available under applicable law. Guarantor hereby consents, prospectively, to Landlord’s taking or entering into any or all of the foregoing actions. This Guaranty and the liability of Guarantor hereunder shall not be impaired, modified, changed, stayed, released or limited in any manner whatsoever by any impairment, modification, change, release, limitation or stay of the liability of Tenant or its estate in bankruptcy resulting from the operation of any present or future provision of the United States Bankruptcy Code or any other statute or from the decision of any court interpreting any of the same. It is understood that this Guaranty shall cease and shall be no longer effective upon the Expiration Date or earlier termination of this Lease except for obligations of Tenant that are specifically referenced in this Lease to survive the Expiration Date or termination of this Lease, or that have accrued under this Lease prior to the HolderExpiration Date or sooner termination of this Lease, which surviving obligations are specifically agreed to include, without limitation, any indemnification obligations of Tenant pursuant to this Lease.
27.05 Guarantor waives (i) notice of acceptance of this Guaranty, (ii) notice of any actions taken by Landlord or Tenant under this Lease or any other agreement or instrument relating thereto, (iii) notice of any and all defaults by Tenant in the manner payment of Tenant Charges, or of any other defaults by Tenant under this Lease, and at (iv) all other notices, demands and protests, and all other formalities of every kind in connection with the place enforcement of payment specified therefor the Obligations, omission of or delay in which, but for payments hereunder the provisions of this Section 27.05, might constitute grounds for relieving Guarantor of his obligations hereunder.
27.06 Guarantor waives trial by jury of any and all issues arising in any Action upon, under or in connection with this Guaranty, this Lease, the Obligations, and any and all negotiations or agreements in connection therewith.
27.07 Guarantor represents and warrants to be made by the CompanyLandlord that:
(a) Guarantor is a citizen of United States of America and has all requisite power and authority to enter into and perform his obligations under this Guaranty.
(b) Parent's Agreement The execution, delivery and performance by Guarantor of this Guaranty does not and will not (i) contravene applicable law or any contractual restriction binding on or affecting Guarantor or any of his properties, or (ii) result in or require the creation of any lien, security interest or other charge or encumbrance upon or with respect 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 any 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 amounthis properties.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid This Guaranty is a legal, valid and performed strictly binding obligation of Guarantor, enforceable against Guarantor in accordance with their respective its terms.
27.08 There is no action, regardless suit or proceeding pending or threatened against or otherwise affecting Guarantor before any court or other governmental authority or any arbitrator which may materially adversely affect Guarantor’s ability to perform its obligations under this Guaranty.
27.09 Guarantor owns 100% of the membership interest in Tenant.
27.10 All consents, notices, demands, requests, approvals or other communications given under this Guaranty shall be given as provided this Lease and shall be addressed to Guarantor at Guarantor’s address set forth on the signature page of this Lease.
27.11 Guarantor hereby irrevocably (i) submits to the jurisdiction of any New Jersey or Federal court sitting in New Jersey in any Action arising out of or relating to this Guaranty, and (ii) agrees that all claims in respect of such Action may be heard and determined in such New Jersey State or Federal court. Service of process in any such Action may be made by mailing or delivering such process to Guarantor at his address specified on the signature page hereof. Guarantor agrees that a final judgment in any such Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner permitted by law. Nothing set forth herein shall limit or affect Landlord’s right to serve legal process in any other manner permitted by law.
27.12 Guarantor irrevocably waives, to the fullest extent permitted by law, regulation and agrees not to assert, by way of motion, as a defense or order now otherwise (i) any objection which it may have or may hereafter have to the laying of the venue of any such Action brought any of the courts described in effect Section 27.11 hereof, (ii) any claim that any such Action brought in any such court has been brought in an inconvenient forum, or (iii) any claim that Guarantor is not personally subject to the jurisdiction affecting of any such courts. Guarantor agrees that final judgment in any such Action brought in any such court shall be conclusive and binding upon Guarantor and may be enforced by Landlord in the courts of any state, in any federal court, and in any other courts having jurisdiction over Guarantor or any of his property, and Guarantor agrees not to assert any defense, counterclaim or right of set-off in any Action brought by Landlord to enforce such terms or the rights of Holder with respect thereto. The Parent waives promptnessjudgment.
27.13 Guarantor hereby irrevocably waives, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to himself and his property, any immunity from the jurisdiction of the Obligationsany court or from any legal process, to which Guarantor may be entitled, and all suretyship defenses generallyagrees not to assert any claims of any such immunities in any Action brought by Landlord under or in connection with this Guaranty. Without limiting Guarantor acknowledges that the generality making of such waivers, and Landlord’s reliance on the foregoingenforceability thereof, the Parent is a material inducement to Landlord to enter into this Lease.
27.14 Guarantor specifically acknowledges and agrees to the provisions set forth in Section 12.06 of any instrument evidencingthis Lease.
27.15 The provisions, securing or otherwise executed in connection with any Obligation covenants and agrees that guaranties of this Guaranty shall be binding upon Guarantor and his heirs, successors, legal representatives and assigns, and shall inure to the obligations benefit of the Parent hereunder Landlord and its successors and assigns, and shall not be released deemed waived or dischargedmodified unless such waiver or modification is specifically set forth in writing, executed by Landlord or its successors and assigns, and delivered to Guarantor.
27.16 Guarantor may execute this instrument in whole or in partcounterparts each of which shall, or otherwise affected by (i) the failure of Holder when executed, be deemed to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), be an original and all of which shall be deemed to be one and the same instrument. Guarantor may execute this instrument by facsimile signature, which shall be done without notice to the Parentas binding as original signature.
Appears in 1 contract
Guaranty. (a) Guaranty of Payment The Guarantor hereby irrevocably and Performance. The Parent hereby unconditionally guarantees ----------------------------------- to Holder as a primary obligation the full and punctual payment when due (whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performance, of all payment obligations of the indebtedness Borrower under the Credit Agreement, up to a maximum amount as to principal of US$450,000,000 plus all interest, fees, indemnities and other amounts owing payable under this Note (collectively, the "Obligations")Credit Agreement, including all such Obligations which amounts that would become due but for the operation of the automatic stay pursuant to (S)362(aunder Section 326(c) of the Federal United States Bankruptcy Code and or similar provisions under other applicable law (collectively, the operation of (S)(S)502(b) and 506(b) of "Guaranteed Obligations"). In the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement event that Holder first attempt to collect any of the ---------------------- Guaranteed Obligations from the Company or resort to shall not be paid when due within any collateral security or other means of obtaining payment. Should the Company default specified grace period provided for in the payment or performance of any of the ObligationsCredit Agreement, the obligations of Guarantor agrees to pay such Guaranteed Obligations within ten Business Days after the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived giving by the Parent. Payments Administrative Agent to the Guarantor of written notice (a "Demand") demanding ------ payment by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the HolderGuarantor, provided that in the manner and at the place of event any such payment specified therefor for payments hereunder is -------- required to be made by the CompanyGuarantor hereunder, the Guarantor may cause such obligation or liability to be paid on its behalf by any corporation affiliated with it, provided that the Guarantor shall nevertheless be unconditionally obligated to pay such obligations or liability if such affiliate, shall fail timely to pay such obligation or liability.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor This Guaranty is a guarantee of payment 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 performance 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 amountcollection.
(c) Waivers The Guarantor shall be subrogated to all rights of the Banks against the Borrower in respect of any amounts paid by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees Guarantor pursuant to the provisions of this Guaranty; provided, however, that the Guarantor shall not -------- ------- be entitled to enforce or receive any instrument evidencingpayments arising out of, securing or otherwise executed based upon, such right of subrogation until all the Guaranteed Obligations shall have been irrevocably and indefeasibly paid in connection with any Obligation full and agrees no Guaranteed Obligations may arise in the future.
(d) The Guarantor, and by its acceptance of this Guaranty, the Administrative Agent and each other Bank, hereby confirms that it is the intention of all such Persons that this Guaranty and the obligations of Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of Bankruptcy Law (as hereinafter defined), the Parent hereunder Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty and the obligations of each Guarantor hereunder. To effectuate the foregoing intention, the Administrative Agent, the other Banks and Guarantor hereby irrevocably agree that the obligation of the Guarantor under this Guaranty at any time shall be limited to the maximum amount as will result in the obligations of Guarantor under this Guaranty not be released constituting a fraudulent transfer or dischargedconveyance. For purposes hereof, "Bankruptcy Law" means any proceeding of the type referred to in whole Section 9.1(d) of the Credit Agreement or in partTitle 11, U.S. Code, or otherwise affected by (i) any similar foreign, federal or state law for the failure relief of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentdebtors.
Appears in 1 contract
Sources: Revolving Credit Agreement (Hughes Electronics Corp)
Guaranty. (a) Guaranty The Guarantor unconditionally, irrevocably guarantees to the Administrative Agent for the ratable benefit of Payment the Administrative Agent and Performance. The Parent hereby guarantees ----------------------------------- to Holder the full and punctual Lenders payment when due (due, whether at stated maturity, by required pre-payment, by acceleration or otherwise, of the full amount of any and all Obligations of the Obligor to the Administrative Agent and the Lenders arising from or in connection with the Credit Agreement together with all expenses incurred by the Administrative Agent and the Lenders in enforcing any of such Obligations or the terms hereof, including, without limitation but without duplication, fees and expenses of legal counsel (subject to the terms and conditions of the Credit Agreement and the other Credit Documents) (the “Guaranteed Obligations”). The Guarantor waives diligence, as well presentment, demand of payment, notice of dishonor or non-payment, protest, notice of protest, of any such obligations, suit or taking other action by the Administrative Agent and the Lenders against, and giving any notice of default or other notice to, or making any demand on, any party liable thereon (including the Guarantor). Payment by the Guarantor is in all cases to be made in the contractual currency of the payment obligation of the Obligor and to the account designated for payments by the Obligor or such other account as the performance, of all Administrative Agent may direct.
(b) This Guaranty is a primary obligation of the indebtedness Guarantor and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional unconditional, continuing and continuing irrevocable guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only or performance and is in no way conditioned on or contingent upon any requirement that Holder first attempt to collect enforce in whole or in part the Guaranteed Obligations. If the Obligor shall fail to pay any of Guaranteed Obligations to the Obligations from Administrative Agent and the Company or resort Lenders as and when they are due (after giving effect to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligationsapplicable grace period), the obligations of the Parent hereunder with respect to Guarantor shall forthwith pay such Guaranteed 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 available funds. Each failure by the Parent. Payments by the Parent hereunder Obligor to pay any Guaranteed Obligations shall give rise to a separate cause of action herewith, and separate suits may be required by ▇▇▇▇▇▇ on any number brought hereunder as each cause of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, 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 amountaction arises.
(c) Waivers by The Administrative Agent may, at any time and from time to time, without the Parent; ▇▇▇▇▇▇'s Freedom consent of or notice to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly Guarantor, except such consent as expressly provided for 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 this Guaranty or any other entity Credit Document or other Person primarily or secondarily liable with respect to any of the Obligationssuch notice as may be required by applicable statute which cannot be waived, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees without incurring responsibility to the provisions of any instrument evidencingGuarantor, securing without impairing or otherwise executed in connection with any Obligation and agrees that releasing the obligations of the Parent hereunder Guarantor hereunder, upon or without any terms or conditions and in whole or in part, (i) change the manner, place and terms of payment or change or extend the time of payment of, renew, or alter any Guaranteed Obligation, or any obligations and liabilities incurred directly or indirectly in respect thereof or hereof or in any manner modify, amend or supplement the terms of the Credit Agreement or any documents, instruments or agreements executed in connection therewith, including with respect to security or collateral, and the guaranty herein made shall apply to the Guaranteed Obligations, changed, extended, renewed, modified, amended, supplemented or altered in any manner, (ii) exercise or refrain from exercising any rights against the Obligor or others (including the Guarantor) or otherwise act or refrain from acting with respect to security interests granted under the Collateral Documents or with respect to the Collateral, (iii) settle or compromise any Guaranteed Obligations and/or any obligations and liabilities (including any of those hereunder) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any Guaranteed Obligations which may be due to the Administrative Agent and the Lenders, (iv) sell, exchange, release, surrender, realize upon or otherwise deal with in any manner or in any order any property by whomsoever pledged or mortgaged to secure or howsoever securing the Guaranteed Obligations and/or any offset thereagainst and (v) apply (subject to the terms and conditions of the Credit Agreement) any sums by whomsoever paid or howsoever realized to any Guaranteed Obligations regardless of what Guaranteed Obligations remain unpaid.
(d) No invalidity, irregularity or unenforceability of the Guaranteed Obligations, ineffectiveness of, or absence or failure of first priority status of, any security interest in property of the Obligor intended to secure the Guaranteed Obligations, or incapacity of the Obligor, shall affect, impair, or be a defense to this Guaranty, which is a primary obligation of the Guarantor.
(e) This Guaranty shall not be released affected by the occurrence of any Event of Default or dischargedDefault under or breach of the Credit Agreement, termination or loan cessation event, by the existence of any bankruptcy, insolvency, reorganization or similar proceedings involving the Obligor, by any change in the laws, rules or regulations of any jurisdiction or by any present or future action of any governmental authority or court amending, varying, reducing or otherwise affecting or purporting to amend, vary, reduce or otherwise affect, any of the Guaranteed Obligations or the obligations of the Guarantor under this Guaranty or by any other circumstance (other than the occurrence of the earlier of (x) the termination of this Guaranty in accordance with and subject to Section 10 and (y) the payment and performance in full of all principal and interest on the Loans and all other Obligations then due and payable (such earlier date, the “Termination Date”)) that might otherwise constitute a legal or equitable discharge or defense of a surety or a guarantor. Except to the extent this Guaranty is terminated pursuant to Section 10, this Guaranty shall be reinstated if at any time any payment by the Obligor, in whole or in part, is rescinded or must otherwise affected be returned by (i) the failure of Holder to assert any claim Administrative Agent upon the insolvency, bankruptcy or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any reorganization of the Obligations; (ii) any extensions, compromise, refinancing, consolidation Obligor or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations)otherwise, all of which may be done without notice to the Parentas though that payment had not been made.
(f) [Intentionally omitted].
(g) [Intentionally omitted].
Appears in 1 contract
Guaranty. (a) The Guaranty or any provision thereof shall cease to -------- be in full force or effect, or the Guarantor or any Person acting by or on behalf of Payment the Guarantor shall deny or disaffirm the Guarantor's obligations under the Guaranty or the Guarantor shall default in the due performance or observance of any term, covenant or agreement on its part to be performed or observed pursuant to the Guaranty; then, and Performance. The Parent hereby guarantees ----------------------------------- to Holder in any such event, and at any time thereafter, if any Event of Default shall then be continuing, any Senior Managing Agent shall, upon the full and punctual payment when due (whether at stated maturitywritten request of the Required Banks, by required pre-paymentwritten notice to Holdings and the Borrower, by acceleration take any or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectivelyfollowing actions, without prejudice to the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy Code. This guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance rights of any Senior Managing Agent or any Bank to enforce its claims against the Borrower, except as otherwise specifically provided for in this Agreement (provided that -------- if an Event of the Obligations, the obligations of the Parent hereunder Default specified in Section 9.05 shall occur with respect to the Borrower, the result which would occur upon the giving of written notice by any Senior Managing Agent as specified in clauses (i) and (ii) below shall occur automatically without the giving of any such Obligations in default shallnotice): (i) declare the Total Commitment terminated, upon demand by Holder, whereupon the Commitment of each Bank shall forthwith terminate immediately and any Facility Fee and Utilization Fee theretofore accrued shall forthwith become immediately due and payable to Holder, without demand or any other notice of any naturekind and (ii) declare the principal of and any accrued interest in respect of all Loans and all Obligations owing hereunder and thereunder to be, whereupon the same shall become, forthwith due and payable without presentment, demand, protest or other notice of any kind, all of which are expressly hereby waived by Holdings and the ParentBorrower. Payments by Notwithstanding anything contained in the Parent hereunder may be required by ▇▇▇▇▇▇ on foregoing paragraph, if at any number time within 60 days after an acceleration of occasions. All payments by the Parent hereunder shall be made Loans pursuant to the Holderpreceding paragraph, in the manner Borrower shall pay all arrears of interest and at the place all pay- ments on account of payment specified therefor for payments hereunder to be made principal which shall have become due otherwise than by the Company.
acceleration (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 principal and, to the time when such amounts become due until paymentextent permitted by law, whether before or after judgmenton overdue interest, at the rate rates specified in this Agreement) and all Events of Default and Defaults (other than non-payment of the principal of and accrued interest set forth on the Loans, in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted each case which is due and payable solely by virtue of acceleration) shall be remedied or waived pursuant to be paid --------- under applicable lawSection 12.11, then Non- Defaulting Banks holding at least 66-2/3% of the Adjusted Total Commitment (which Banks shall include in any event the Majority SMA), by written notice to Holdings and the Borrower, may at their option rescind and annul the acceleration and its consequences; but such interest action shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Actnot affect any subse- quent Event of Default or Default or impair any right consequent thereon. The Parent agrees ---------------------------------------------- that provisions of this paragraph are intended merely to bind 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 Banks to a decision which may be available by virtue made at the election of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any the aforesaid percentage of the Banks and are not intended to benefit the Borrower and do not grant the Borrower the right to require the marshalling of assets of Banks to rescind or annul any acceleration hereunder, even if the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the Parentconditions set forth herein are met.
Appears in 1 contract
Sources: Credit Agreement (RJR Nabisco Inc)
Guaranty. (a) Guaranty of Payment Subject to Section 2(b) hereof, each Guarantor hereby absolutely, irrevocably and Performance. The Parent hereby unconditionally guarantees ----------------------------------- to Holder the full and punctual prompt payment when due (whether at stated maturity, by required pre-paymentacceleration, by acceleration mandatory prepayment, by notice of intention to prepay or otherwise), as well as the performance, of all of the indebtedness and other amounts owing under this Note (collectively, the "Obligations"), including all such Obligations which would become due but for the operation of the automatic stay pursuant to (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(b) and 506(b) of the Federal Bankruptcy CodeBorrower Obligations. This guaranty is an absolute, unconditional and continuing Agreement constitutes a guaranty of the full and punctual payment and performance of all of neither the Obligations and not of their collectability only and is in no way conditioned upon Agent nor any requirement that Holder first attempt Lender shall have any obligation to collect enforce any of the Obligations from the Company Loan Document or resort exercise any right or remedy with respect to any collateral security thereunder by any action, including, without limitation, making or other means of obtaining payment. Should the Company default in the payment perfecting any claim against any Person or performance of any collateral security for any of the Obligations, Borrower Obligations prior to being entitled to the obligations benefits of the Parent hereunder with respect to such this Agreement. The Guarantor 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 97 absolute, irrevocable, unconditional, direct and primary and shall not be subject to any counterclaim, right of set-off or defense whatsoever. The Agent may, at its option, proceed against the HolderGuarantors, or any one or more of them, in the manner first instance, to enforce the Guarantor Obligations without first proceeding against the Borrowers or any other Person, and at without first resorting to any other rights or remedies, as the place of payment specified therefor for payments Agent may deem advisable. In furtherance hereof, if the Agent or any Lender is prevented by law from collecting or otherwise hindered from collecting or otherwise enforcing any Borrower Obligation in accordance with its terms, the Agent or such Lender, as the case may be, shall be entitled to receive hereunder to be made by from the CompanyGuarantors after demand therefor, the sums which would have been otherwise due had such collection or enforcement not been prevented or hindered.
(b) Parent's Agreement Notwithstanding anything to Pay Enforcement Coststhe contrary contained in this Agreement, etc. The Parent ------------------------------------------------ further agreesthe maximum liability of each Guarantor hereunder shall not, as of any date of determination, exceed the principal obligor lesser of (i) the highest amount that is valid and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost enforceable against such Guarantor under principles of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable New York State contract law, then and (ii) the sum of (A) all Consideration received by such interest shall be reduced to Guarantor as of such maximum permitted amountdate of determination, plus (B) 95% of the Net Worth of such Guarantor on such date of determination.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and Each Guarantor agrees that the obligations Guarantor Obligations may at any time and from time to time exceed the maximum liability of such Guarantor hereunder without impairing this Agreement or affecting the rights and remedies of the Parent hereunder shall not be released or 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 Agent or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentLender hereunder.
Appears in 1 contract
Guaranty. Each Guarantor hereby irrevocably, unconditionally and jointly and severally with the other Guarantors guarantees to each holder, the due and punctual payment in full of (a) Guaranty the principal of, Make-Whole Amount, if any, and interest on (including, without limitation, interest accruing after the filing of Payment any petition in bankruptcy, or the commencement of any insolvency, reorganization or like proceeding, whether or not a claim for post-filing or post-petition interest is allowed in such proceeding), and Performance. The Parent hereby guarantees ----------------------------------- to Holder any other amounts due under, the full Notes when and punctual payment when as the same shall become due and payable (whether at stated maturity, maturity or by required pre-payment, or optional prepayment or by acceleration or otherwise), as well as ) and (b) any other sums which may become due under the performance, of all terms and provisions of the indebtedness and other amounts owing under this Note (collectivelyNotes, the "Obligations")Note Agreement or any other instrument referred to therein, including (all such Obligations which would become due but for the operation of the automatic stay pursuant to obligations described in clauses (S)362(a) of the Federal Bankruptcy Code and the operation of (S)(S)502(ba) and 506(b(b) of above are herein called the Federal Bankruptcy Code“Guaranteed Obligations”). This The guaranty in the preceding sentence is an absolute, unconditional present and continuing guaranty of the full and punctual payment and performance of all of the Obligations and not of their collectability only collectibility and is in no way conditioned conditional or contingent upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the Obligations, this guaranty and the enforcement thereof, together with interest on amounts recoverable hereunder from the time when such amounts become due until payment, whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds the maximum amount permitted to be paid --------- under applicable law, then such interest shall be reduced to such maximum permitted amount.
(c) Waivers by the Parent; ▇▇▇▇▇▇'s Freedom to Act. The Parent agrees ---------------------------------------------- that the Obligations will be paid and performed strictly in accordance with their respective terms, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity guarantor of the Notes (including, without limitation, any other Guarantor hereunder) or upon any other Person primarily action, occurrence or secondarily liable with respect circumstance whatsoever. In the event that the Company shall fail so to pay any of the such Guaranteed Obligations, and all suretyship defenses generally. Without limiting each Guarantor agrees to pay the generality same when due to the holders entitled thereto, without demand, presentment, protest or notice of any kind, in lawful money of the foregoingUnited States of America, the Parent agrees pursuant to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change requirements for payment specified in the time, place or manner of Notes and the Note Agreement. Each default in payment of any of the Guaranteed Obligations shall give rise to a separate cause of action hereunder and separate suits may be brought hereunder as each cause of action arises. Each Guarantor agrees that the Notes issued in connection with the Note Agreement may (but need not) make reference to this Guaranty Agreement. Each Guarantor agrees to pay and to indemnify and save each holder harmless from and against any damage, loss, cost or expense (including attorneys’ fees) which such holder may incur or be subject to as a consequence, direct or indirect, of (x) any breach by such Guarantor, by any other Guarantor or by the Company of any warranty, covenant, term or condition in, or the occurrence of any default under, this Guaranty Agreement, the Notes, the Note Agreement or any rescissionsother instrument referred to therein, waivers, compromise, refinancing, consolidation together with all expenses resulting from the compromise or other amendments or modifications defense of any claims or liabilities arising as a result of any such breach or default, (y) any legal action commenced to challenge the terms validity or enforceability of this Guaranty Agreement, the Notes, the Note Agreement or any other instrument referred to therein and (z) enforcing or defending (or determining whether or how to enforce or defend) the provisions of this Note or Guaranty Agreement. Each Guarantor hereby acknowledges and agrees that such Guarantor’s liability hereunder is joint and several with the other Guarantors and any other agreement evidencing, securing or otherwise executed Person(s) who may guarantee the obligations and Indebtedness under and in connection with any respect of the Obligations made in accordance with Notes and the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligations), all of which may be done without notice to the ParentNote Agreement.
Appears in 1 contract
Sources: Multi Currency Note Purchase and Private Shelf Agreement (Idexx Laboratories Inc /De)
Guaranty. (a) Guaranty For value received, and in consideration of Payment and Performance. The Parent any loan or other financial accommodation, heretofore or hereafter at any time made or granted to the Company by the Noteholders, the Guarantor hereby unconditionally guarantees ----------------------------------- to Holder the full and punctual prompt payment when due (due, whether at stated maturity, by required pre-payment, by acceleration or otherwise), as well as the performanceand at all times thereafter, of all obligations of the indebtedness Company to the Collateral Agent and other amounts owing under this Note (collectivelyeach Noteholder and their successors and assigns, the "Obligations")howsoever created, including arising or evidenced, whether direct or indirect, primary or secondary, absolute or contingent, joint or several, or now or hereafter existing or due or to become due, including, without limitation, all such Obligations amounts which would become due but for the operation of the automatic stay pursuant to (S)362(aunder Section 362(a) of the Federal United States Bankruptcy Code Code, 11 U.S.C. Section 362(a), and the operation of (S)(S)502(bSections 502(b) and 506(b) of the Federal such Bankruptcy Code. This guaranty is an absolute, unconditional 11 U.S.C. Section 502(b) and continuing guaranty of the full Section 506(b), under and punctual payment and performance of all of the Obligations and not of their collectability only and is in no way conditioned upon any requirement that Holder first attempt to collect any of the Obligations from the Company or resort to any collateral security or other means of obtaining payment. Should the Company default in the payment or performance of any of the Obligations, the obligations of the Parent hereunder with respect to such Obligations in default shall, upon demand by Holder, become immediately due and payable to Holder, without demand or notice of any nature, all of which are expressly waived by the Parent. Payments by the Parent hereunder may be required by ▇▇▇▇▇▇ on any number of occasions. All payments by the Parent hereunder shall be made to the Holder, in the manner and at the place of payment specified therefor for payments hereunder to be made by the Company.
(b) Parent's Agreement to Pay Enforcement Costs, etc. The Parent ------------------------------------------------ further agrees, as the principal obligor and not as a guarantor only, to pay to Holder, on demand, all reasonable costs and expenses (including court costs and reasonable legal expenses, including the allocated cost of staff counsel) incurred or expended by Holder in connection with the ObligationsNote Purchase Agreement, this guaranty including, without limitation under (a) the Notes, (b) the Note Purchase Agreement and (c) the Security Agreement (all such obligations being hereinafter collectively called the "Liabilities"), and the enforcement Guarantor further agrees to pay all expenses (including reasonable attorneys' fees and legal expenses) paid or incurred by the Collateral Agent and any other Noteholder in endeavoring to collect the Liabilities, or any part thereof, together with interest on amounts recoverable hereunder from and in enforcing this Guaranty. Anything herein contained to the time when contrary notwithstanding, the amount of this Guaranty, however, shall not exceed the maximum amount which the Guarantor can pay under this Guaranty without having such amounts become due until paymentpayment set aside as a fraudulent transfer or conveyance or similar action under such Bankruptcy Code or any applicable state law. The term Liabilities shall include any future advances by the Noteholders (whether in the form of debt or equity) to or for the benefit of the Borrower, regardless of whether before or after judgment, at the rate of interest set forth in (S)1 hereof, provided that if such interest exceeds Noteholders become 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 owner of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Holder with respect thereto. The Parent waives promptness, diligence, presentment, demand, protest, notice of acceptance, notice of any Obligations incurred and all other notices of any kind, all defenses which may be available by virtue of any valuation, stay, moratorium law or other similar law now or hereafter in effect, any right to require the marshalling of assets of the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations, and all suretyship defenses generally. Without limiting the generality of the foregoing, the Parent agrees to the provisions of any instrument evidencing, securing or otherwise executed in connection with any Obligation and agrees that the obligations of the Parent hereunder shall not be released or discharged, in whole or in part, or otherwise affected by (i) the failure of Holder to assert any claim or demand or to enforce any right or remedy against the Company or any other entity or other Person primarily or secondarily liable with respect to any of the Obligations; (ii) any extensions, compromise, refinancing, consolidation or renewals of any Obligation; (iii) any change in the time, place or manner of payment of any of the Obligations or any rescissions, waivers, compromise, refinancing, consolidation or other amendments or modifications of any of the terms or provisions of this Note or any other agreement evidencing, securing or otherwise executed in connection with any of the Obligations made in accordance with the terms hereof; (iv) the addition, substitution or release of any entity or other person primarily or secondarily liable for any Obligation; or (v) any other act or omission which might in any manner or to any extent vary the risk of the Parent or otherwise operate as a release or discharge of the Parent (other than the indefeasible payment in full, in cash, of all of the Obligationsstock in the Borrower. This Guaranty is a direct obligation of Guarantor to make the Investors whole on the investment evidenced by the Notes and the Note Purchase Agreement (including interest and other amounts payable under the Note Purchase Agreement), all of which may be done without notice to the Parent.
Appears in 1 contract
Sources: Guaranty Agreement (Probex Corp)