Guaranty. (a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom. (b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated. (c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty. (d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient. (e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers. (f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group. (g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 2 contracts
Sources: Credit Agreement (Affinity Guest Services, LLC), Credit Agreement (Affinity Group Holding, Inc.)
Guaranty. (a) Each The Guarantor hereby guarantees unconditionally and irrevocably guarantees, as primary obligor and not merely surety, to the Administrative Agent, for Beneficiaries the benefit prompt and complete payment by the Owner Participant when due of all payment obligations of the Lender GroupOwner Participant under the Operative Agreements without offset or deduction and the timely performance of all other obligations of the Owner Participant thereunder (such payment and other obligations, the full "Obligations"), and prompt payment the Guarantor further agrees to pay any and all expenses (including, without limitation, reasonable fees and expenses of counsel) that may be paid or incurred by the Beneficiaries in enforcing any rights with respect to, or collecting, any or all of the ObligationsObligations and/or enforcing any rights with respect to, including or collecting against, the Guarantor under this Guaranty. The Guarantor will not exercise any interest therein (including interest as provided rights that it may now or hereafter acquire against Owner Participant that arise from the existence, payment, performance or enforcement of the Guarantor's Obligations under this Guaranty or the Operative Agreements, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution or indemnification and any right to participate in this Agreement, accruing after the filing any claim or remedy of a petition initiating any Insolvency ProceedingsBeneficiary against Owner Participant or any collateral, whether or not such interest accrues claim, remedy or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code right arises in equity or is an allowed claim in such proceeding)under contract, plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by statute or common law, through an attorneyincluding, without limitation, the right to take or receive from Owner Participant, directly or indirectly, in cash or other property or by set-at-law, off or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Groupmanner, payment or any security on account of themsuch claim, for remedy or in respect right, unless and until all of the Obligations or any part thereof, have been performed in full and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether all other amounts payable under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or cash. If any amount shall be paid to the Guarantor in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) violation of the Letter preceding sentence at any time prior to the final payment in full in cash of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any Obligations and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way amounts payable under this Guaranty, (i) take such further or other security or securities amount shall be held in trust for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage benefit of any security for Beneficiary and shall forthwith be paid to such Beneficiary to be credited and applied to the Obligations and accept all other amounts payable under this Guaranty, whether matured or make any compositions or arrangementsunmatured, and realize upon any security for in accordance with the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Operative Agreements, or to be held as collateral for any Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable amounts payable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waiversthereafter arising.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 2 contracts
Sources: Owner Participant Guaranty (Federal Express Corp), Guaranty (Federal Express Corp)
Guaranty. (a) Each Loan Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for its successors or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense assigns (other than the defense of payment in cash in fullthose that have delivered a separate Loan 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 of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or permissible under the obligations laws of the Guarantors under this Guaranty country in which such Loan Guarantor is located or organized, to the obligations Lenders and the Agents (collectively, the “Guaranteed Parties”) the prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of any other Person or party the Secured Obligations and all costs and expenses including, without limitation, all court costs and attorneys’ and paralegals’ fees (including Borrowersallocated costs of in-house counsel and paralegals) relating to this Guaranty and expenses paid or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought incurred by the Administrative Agent or any other member of Agents and the Lender Group Lenders in endeavoring to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities Secured Obligations from, or in prosecuting any action against, the Borrower, any other Loan Guarantor or any other guarantor of all or any part of the Secured Obligations (such costs and expenses, together with the Secured Obligations, collectively the “Guaranteed Obligations”). Each Loan Guarantor further agrees that the Guaranteed Obligations may be extended or renewed in whole or in part without notice to or further assent from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal. All terms of this Loan Guaranty apply to and may be enforced by or on behalf of any domestic or foreign branch or Affiliate of any Lender that extended any portion of the Guaranteed Obligations. If any payment by a Loan Guarantor or any discharge given by a Guaranteed Party (whether in respect of the obligations of such any Loan Guarantor pursuant or any security for those obligations or otherwise) is avoided or reduced as a result of insolvency or any similar event: (a) the liability of each Loan Guarantor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and (b) each Guaranteed Party shall be entitled to this Guaranty; it being recover the purpose and intent value or amount of that security or payment from each Loan Guarantor, as if the Guarantors and the Lender Group that the covenantspayment, agreements and all liabilities and discharge, avoidance or reduction had not occurred. The obligations of each Loan Guarantor hereunder are absoluteunder this Article X will not be affected by an act, unconditional 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 irrevocable 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 and all circumstancesLoan Document or any other document or security; or (g) any insolvency, bankruptcy, winding-up, liquidation, reorganization or other similar proceedings. Without limiting prejudice to the generality of the foregoingabove, each Loan Guarantor agrees expressly confirms, as permissible under applicable law, that until each and every one of the covenants and agreements of it intends that this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder guarantee shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or extend from time to time when to any amount shall be due and payable hereunder by any Guarantor(however fundamental) variation, if Borrowers shall not have timely paid increase, extension or addition of or to any of the Obligations Loan Documents and/or any amount made available under any of the Loan Documents for the purposes of or in connection with any of the following: acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new Borrower; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing. Each Loan Guarantor waives any right it may have of first requiring any Guaranteed Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Loan Guarantor under this Article X. This waiver applies irrespective of any law or any provision of a Loan Document to the contrary. This guarantee is in the case of Letter of Credit Obligations, secured through delivery of cash collateral addition to and is not in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and any way prejudiced by any other guarantee or security now or subsequently held by any Guaranteed Party. This guarantee does not apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and liability to the extent that it would result in this guarantee constituting unlawful financial assistance within the meaning of any Guarantor makes any payment to equivalent and applicable provisions under the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full laws of the Obligations to the satisfaction jurisdiction of incorporation of the Lender Grouprelevant Loan Guarantor.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 2 contracts
Sources: Credit Agreement (Office Depot Inc), Credit Agreement (Office Depot Inc)
Guaranty. (a) Each Guarantor The Guarantors jointly and severally hereby guarantees unconditionally and irrevocably (i) guarantee to the Administrative AgentLender the prompt and complete payment when due (whether at stated maturity, for by acceleration or otherwise) of all payments of Debtor to Lender pursuant to the benefit Note (the "Obligations"), and (ii) agree to pay any and all expenses (including counsel fees and expenses) incurred by the Lender in obtaining advice of counsel in respect of this Guaranty and incurred by the Lender in enforcing any rights with respect to, or collecting against the Guarantors under, this Guaranty. GUARANTY order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations thereto. The liability of the Guarantors under this Guaranty shall be absolute and unconditional irrespective of:
(a) any lack of validity, regularity or enforceability of the obligations of Note or any other Person agreement or party instrument relating thereto;
(including Borrowersb) relating to any lack of validity, regularity or enforceability of this Guaranty or any other agreement or instrument relating hereto;
(c) any change in the obligations time, manner or place of payment of, or in any other term of, all or any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent Obligations, or any other member amendment or waiver of or any consent to departure from the Note;
(d) any exchange, release or non-perfection of any collateral, or any release or amendment or waiver of or consent to departure from any other guaranty, for all or any of the Obligations;
(e) any failure on the part of the Lender Group to collect exercise, or any delay in exercising, any right under the Note or any other document; or
(f) any other circumstance which might otherwise constitute a defense available to, or a discharge of, the Debtor, the Guarantors or any other guarantor of all or a portion of the Obligations (including, without limitation, all defenses based on suretyship or any portion thereofimpairment of collateral, or and all defenses that the Debtor may assert to enforce the obligations repayment of any the Obligations, including, without limitation, failure of consideration, breach of warranty, payment, statute of frauds, bankruptcy, lack of legal capacity, statute of limitations, lender liability, accord and satisfaction, and usury), this Guaranty and the Obligations of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 2 contracts
Sources: Guaranty (Compliance Systems Corp), Guaranty (Compliance Systems Corp)
Guaranty. Guarantor, upon the occurrence of a Springing Recourse Event, hereby absolutely, irrevocably and unconditionally guaranties the due and punctual payment and performance when due, whether at stated maturity, by acceleration or otherwise, of all of the following (collectively referred to as the “Guarantied Obligations”): (a) Each Guarantor hereby guarantees all indebtedness and obligations owing by the Borrower to any Lender, the Administrative AgentSwingline Lender, for the benefit 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 Lender GroupRevolving Loans, Term Loans A, Term Loans B, Swingline Loans and the full Reimbursement Obligations, and prompt the payment of all interest, Fees, charges, attorneys’ fees and other amounts payable to any Lender or the ObligationsAgent thereunder or in connection therewith; (b) any and all extensions, including any interest therein (including interest as provided in this Agreementrenewals, accruing after the filing of a petition initiating any Insolvency Proceedingsmodifications, whether amendments or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes substitutions of the Bankruptcy Code or is an allowed claim in such proceeding)foregoing; (c) all expenses, plus including, without limitation, reasonable attorneys’ fees and expenses if disbursements, that are incurred by the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless Lenders and the Agent in the enforcement of whether any proposed guarantor of the foregoing or any obligation of Guarantor hereunder; and (d) all other Person shall become in any other way responsible to Obligations. For the Lender Grouppurposes of this Guaranty, or the occurrence of any of them, for or the events described in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty (1)-(3) below shall be a joint “Springing Recourse Event”:
(A) Guarantor fails to perform or comply with any of the following terms (each, a “Guarantor Covenant Breach”):
(i) the Guarantor shall not, directly or indirectly, enter into or conduct any business other than in connection with the ownership, acquisition and several obligationdisposition of general or limited partnership interests in the Borrower and the management of the business of the Borrower, and such activities as are incidental thereto, all of which shall be a continuing guaranty and solely in furtherance of the business of the Borrower;
(ii) the Guarantor shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash not own any assets other than (A) equity interests (or rights, options or warrants in respect thereof) of the case of Letter of Credit ObligationsBorrower, secured through delivery of cash collateral in an amount equal (B) up to a one hundred five percent (1051%) equity interest in any partnership or limited liability company at least ninety-nine percent (99%) of the Letter equity of which is owned, directly or indirectly, by the Borrower; (C) money that has been distributed to Guarantor by Borrower or a Subsidiary of Borrower described in clause (ii)(B) above in accordance with Section 10.2. of the Credit ObligationsAgreement that is held for ten (10) Business Days or less pending further distribution to equity holders of the Guarantor, (D) assets received by the Guarantor from third parties (including, without limitation, 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 the Revolving Loan Commitment shall have been terminated.
(cD) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense above) or equity interests (other than equity interests permitted in clauses (ii)(A) and (B) above);
(iii) the defense of payment in cash in full, Guarantor shall promptly contribute or otherwise downstream to the extent 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 its obligations hereunderclause (ii)(D) above;
(iv) the Guarantor shall not merge or consolidate (except as permitted in the Credit Agreement), or dissolve, liquidate or otherwise wind up its business, affairs or assets;
(v) the Guarantor shall not guarantee, or otherwise be or become obligated in respect of, any Indebtedness (which for the purposes hereof shall include any obligations under any Derivatives Contract but shall exclude (A) guarantees of obligations under any Derivatives Contracts in favor of Associated Bank National Association and any lender under the Prior Term Loan Agreement or Prior Existing Credit Agreement in place as of ▇▇▇▇▇ ▇▇, ▇▇▇▇, (▇) any Indebtedness described in clause (f) of the definition of Indebtedness, (C) any liability pursuant to a defense Customary Nonrecourse Debt Guaranty until a claim is made with respect thereto (provided that such for the purposes of this clause (v), the Guarantor shall not be deemed to have violated this covenant with respect to Indebtedness under a Customary Nonrecourse Debt Guaranty until a judgment is obtained with respect to claims under Customary Nonrecourse Debt Guaranties individually or in the aggregate of $30,000,000 or greater), and (D) any liability pursuant to a springing guaranty on substantially the same terms as the Springing Guaranty; and provided further that the Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty (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 the obligations in anticipation of the Guarantors under this Guaranty or the obligations merger of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any Inland Diversified with and into KRG Magellan, solely by virtue of the Guarantors under this Guaranty or otherwise Guarantor being the general partner of Borrower and not as a guarantor, shall be excluded from the foregoing provided such liability is not increased; and
(B) with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations a Guarantor Covenant Breach of any event described in (1)(A)(i)-(iii) above, the passage of forty-five (45) days after the Guarantors under this Guaranty.
(d) The Lender Group, or any first to occur of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, either (i) take Borrower or Guarantor becoming aware of such further or other security or securities for the Obligations or any part thereof as they may deem properGuarantor Covenant Breach, or (ii) releaseAgent notifying Borrower in writing of any such Guarantor Covenant Breach, discharge, abandon or otherwise deal or
(C) with or fail respect to deal with any a Guarantor Covenant Breach of the Obligations event described in clause (1)(A)(v) above, the passage of ten (10) Business Days (or any security forty-five (45) days if the aggregate Indebtedness for the purposes of clause (1)(A)(v) above is less than $10,000,000), after the first to occur of either (i) Borrower or securities therefor or any part thereof now or hereafter held by the Lender Group, or any Guarantor becoming aware of themsuch Guarantor Covenant Breach, or (iiiii) amend, modify, extend, accelerate or waive Agent notifying Borrower in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage writing of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.Guarantor Covenant Breach; or
(e2) Each Borrower or Guarantor acknowledges and agrees that no change in shall commence a voluntary case under the nature or terms Bankruptcy Code of the Obligations or any of the Loan Documents1978, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other handas amended, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent federal bankruptcy or any other Person pursuant domestic or foreign laws relating to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratoriumwinding-up, fraudulent conveyance 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 officer or director thereof shall collude with, or otherwise assist any party in connection with any 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 guaranty under this Guaranty of the Guarantied Obligations shall automatically become fully effective upon the occurrence of any Springing Recourse Event and no other similar laws relating documentation or notice shall be required to evidence the insolvency of debtorssame.
Appears in 2 contracts
Sources: Credit Agreement (Kite Realty Group, L.P.), Springing Guaranty (Kite Realty Group, L.P.)
Guaranty. (a) Each Guarantor Borrower hereby unconditionally and irrevocably, guarantees to the Administrative Agent, for Lender:
(i) the benefit of due and punctual payment in full (and not merely the Lender Group, collectibility) by the full and prompt payment other Borrowers of the Obligations, including any unpaid and accrued interest therein (including interest as provided thereon, in each case when due and payable, all according to the terms of this Agreement, accruing after the filing Notes and the other Financing Documents;
(ii) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of a petition initiating all other sums and charges which may at any Insolvency Proceedingstime be due and payable in accordance with this Agreement, whether the Notes or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes any of the Bankruptcy Code or is an allowed claim other Financing Documents;
(iii) the due and punctual performance by the other Borrowers of all of the other terms, covenants and conditions contained in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromFinancing Documents; and
(iv) all the other Obligations of the other Borrowers.
(b) Regardless The obligations and liabilities of whether any proposed each Borrower as a guarantor or any other Person under this Section 2.5.5 shall become in any other way responsible to the Lender Groupbe absolute and unconditional and joint and several, or any of them, for or in respect irrespective of the Obligations genuineness, validity, priority, regularity or any part thereofenforceability of this Agreement, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations Notes or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all Financing Documents or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing other circumstance which might, but for this paragraph of this Guaranty, be deemed might otherwise constitute a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of . Each Borrower in its capacity as a guarantor expressly agrees that the Lender Groupmay, 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 of themdefaults under, or their failure grant any other indulgences under or with respect to proceed promptly any of the Financing Documents;
(ii) modify, amend, change or otherwise, or by reason terminate any provisions of any action taken of the Financing Documents;
(iii) grant extensions or omitted by renewals of or with respect to the Lender GroupCredit Facilities, the Notes or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.Financing Documents;
(fiv) The Lender Groupeffect any release, subordination, compromise or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or settlement in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance connection with this Agreement, any depositsof the Notes or any of the other Financing Documents;
(v) agree to the substitution, propertyexchange, balancesrelease or other disposition of the Collateral or any part thereof, credit accounts or moneys any other collateral for the Loan or to the subordination of any Guarantor lien or security interest therein;
(vi) make advances for the purpose of performing any term, provision or covenant contained in the possession of this Agreement, any member of the Lender Group Notes or under their respective control for any purpose. If 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 that permitted by the provisions of this Agreement;
(ix) deal in all respects with the other Borrowers as if this Section 2.5.5 were not in effect;
(x) effect any Guarantor makes release, compromise or settlement with any payment to of the Administrative Agent other Borrowers, whether in their capacity as a Borrower or as a guarantor under this Section 2.5.5, or any other Person pursuant 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 in respect of this Guaranty, defense based upon any claim which such Guarantor 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 by reason thereof shall be subject and subordinate with respect to this Agreement, the Notes or any of the other Financing Documents, whether pursuant to the prior payment terms thereof or by operation of law. Without limiting the generality of the foregoing, the Lender shall not be required to make any demand upon any of the Borrowers, or to sell the Collateral or otherwise pursue, enforce or exhaust its remedies against the Borrowers or the Collateral either before, concurrently with or after pursuing or enforcing its rights and remedies hereunder. Any one or more successive or concurrent actions or proceedings may be brought against each Borrower under this Section 2.5.5, either in the same action, if any, brought against any one or more of the Borrowers or in separate actions or proceedings, as often as the Lender may deem expedient or advisable. Without limiting the foregoing, it is specifically understood that any modification, limitation or discharge of any of the liabilities or obligations of any one or more of the Borrowers, any other guarantor or any obligor under any of the Financing Documents, arising out of, or by virtue of, any bankruptcy, arrangement, reorganization or similar proceeding for relief of debtors under federal or state law initiated by or against any one or more of the Borrowers, in their respective capacities as borrowers and guarantors under this Section 2.5.5, or under any of the Financing Documents shall not modify, limit, lessen, reduce, impair, discharge, or otherwise affect the liability of each Borrower under this Section 2.5.5 in any manner whatsoever, and this Section 2.5.5 shall remain and continue in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, force and shall in no way impair or affect this Guaranty or the rights of the Lender Group hereineffect. It is the intention intent and purpose of this Section 2.5.5 that each Guarantor Borrower shall and does hereby waive all rights and benefits which might accrue to any other guarantor by reason of any such proceeding, and the Administrative Agent Borrowers agree that each Guarantor’s they shall be liable for the full amount of the obligations hereunder shall beand liabilities under this Section 2.5.5, but not in excess regardless of, and irrespective to, any modification, limitation or discharge of the Maximum Guaranteed Amount 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 herein defined)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 Section 2.5.5, the Notes or any of the other Financing Documents;
(vi) all errors and omissions in connection with the Lender’s administration of all indebtedness guaranteed by this Section 2.5.5, except errors and omissions resulting from acts of bad faith;
(vii) any right or claim of right to cause a marshalling of the assets of any one or more of the other Borrowers;
(viii) any act or omission of the Lender which changes the scope of the risk as guarantor hereunder; and
(ix) all other notices and demands otherwise required by law which the Borrower may lawfully waive. The “Maximum Guaranteed Amount” Within ten (10) days following any request of the Lender so to do, each Borrower will furnish the Lender and such other persons as the Lender may direct with a written certificate, duly acknowledged stating in detail whether or not any credits, offsets or defenses exist with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorsSection 2.5.5.
Appears in 2 contracts
Sources: Financing and Security Agreement (Tvi Corp), Financing and Security Agreement (Tvi Corp)
Guaranty. (a) Each Guarantor hereby guarantees to On or before the Administrative AgentCommencement Date, Tenant shall deposit with Landlord, as security for the benefit payment of the Lender Group, Rent due hereunder and the full and prompt payment faithful performance by Tenant of the Obligationscovenants and conditions on the part of Tenant to be performed under this Lease, including any interest therein a cash security deposit (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes “Security Deposit”). The initial amount of the Bankruptcy Code or Security Deposit shall be the sum of One Hundred Fifty-Five Thousand Seven Hundred Ten and no/100 ($155,710.00) Dollars. In the event of any default by Tenant under this Lease, Landlord is an allowed claim hereby authorized to draw upon the Security Deposit to cure the default. In such case, Tenant shall immediately provide Landlord with additional cash in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorneyamount equal to the aggregate of twelve (12) monthly payments of the then-at-law, or under advice therefromcurrent Basic Rent.
(b) Regardless The remainder of whether any proposed guarantor the Security Deposit shall be returned to Tenant after the expiration of the Term, provided that Tenant has fully and faithfully performed all such covenants and conditions of this Lease, is not in arrears in Rent and has vacated the Premises. In the event of a sale, pledge, transfer or any other Person encumbrance of the Premises subject to this Lease, Landlord shall become have the right to transfer the Security Deposit to a purchaser or lender, as applicable, and Landlord shall be considered released by Tenant from all liability for the return of the Security Deposit. All costs incurred in any other way responsible connection with the transfer of the Security Deposit shall be paid by Tenant. It is agreed that this shall apply to every transfer or assignment made of the Security Deposit to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminatednew landlord.
(c) Each Guarantor absolutelyIn the event of the insolvency of Tenant or in the event of the entry of a judgment in bankruptcy in any court against Tenant which is not discharged within thirty (30) days after entry, unconditionally or in the event a petition is filed by or against Tenant under any chapter of the bankruptcy or insolvency laws of any state or the United States of America, then and irrevocably waives any and in such event Landlord may require Tenant to deposit additional security in such amount as may be necessary to adequately assure Tenant's performance of all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or Lease, including all payments subsequently accruing. Failure of Tenant to deposit the obligations of any other Person or party additional security required by this section within ten (including Borrowers10) relating to this Guaranty or the obligations of any of the Guarantors days after Landlord's written demand shall constitute a default by Tenant under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this GuarantyLease.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 2 contracts
Sources: Real Estate Purchase and Sale Contract (Air Industries Group), Lease Agreement (Air Industries Group)
Guaranty. (a) Each Guarantor Borrower hereby unconditionally and irrevocably, guarantees to Lender:
(i) the Administrative Agent, for due and punctual payment in full (and not merely the benefit of collectibility) by the Lender Group, the full and prompt payment other Borrowers of the Obligations, including any unpaid and accrued interest therein (including interest as provided thereon, in each case when due and payable, all according to the terms of this Agreement, accruing after the filing Notes and the other Financing Documents;
(ii) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of a petition initiating all other sums and charges which may at any Insolvency Proceedingstime be due and payable in accordance with this Agreement, whether the Notes or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes any of the Bankruptcy Code or is an allowed claim other Financing Documents;
(iii) the due and punctual performance by the other Borrowers of all of the other terms, covenants and conditions contained in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromFinancing Documents; and
(iv) all the other Obligations of the other Borrowers.
(b) Regardless The obligations and liabilities of whether any proposed each Borrower as a guarantor or any other Person under this Section 2.4.10 shall become in any other way responsible to the Lender Groupbe absolute and unconditional and joint and several, or any of them, for or in respect irrespective of the Obligations genuineness, validity, priority, regularity or any part thereofenforceability of this Agreement, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations Notes or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all Financing Documents or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing other circumstance which might, but for this paragraph of this Guaranty, be deemed 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 by reason further assent of such Borrower and without in any waiverway releasing, omission affecting or in any way impairing the joint and several obligations and liabilities of the Lender Groupsuch Borrower as a guarantor hereunder:
(i) waive compliance with, or any of themdefaults under, or their failure grant any other indulgences under or with respect to proceed promptly any of the Financing Documents;
(ii) modify, amend, change or otherwise, or by reason terminate any provisions of any action taken of the Financing Documents;
(iii) grant extensions or omitted by renewals of or with respect to the Lender GroupCredit Facilities, the Notes or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.Financing Documents;
(fiv) The Lender Groupeffect any release, subordination, compromise or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or settlement in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance connection with this Agreement, any depositsof the Notes or any of the other Financing Documents;
(v) agree to the substitution, propertyexchange, balancesrelease or other disposition of the Collateral or any part thereof, credit accounts or moneys any other collateral for the Loan or to the subordination of any Guarantor lien or security interest therein;
(vi) make advances for the purpose of performing any term, provision or covenant contained in the possession of this Agreement, any member of the Lender Group Notes or under their respective control for any purpose. If 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 that permitted by the provisions of this Agreement;
(ix) deal in all respects with the other Borrowers as if this Section 2.4.10 were not in effect;
(x) effect any Guarantor makes release, compromise or settlement with any payment to of the Administrative Agent other Borrowers, whether in their capacity as a Borrower or as a guarantor under this Section 2.4.10, or any other Person pursuant 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 in respect of this Guaranty, defense based upon any claim which such Guarantor 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 by reason thereof shall be subject and subordinate with respect to this Agreement, the Notes or any of the other Financing Documents, whether pursuant to the prior payment terms thereof or by operation of law. Without limiting the generality of the foregoing, Lender shall not be required to make any demand upon any of Borrowers, or to sell the Collateral or otherwise pursue, enforce or exhaust its remedies against Borrowers or the Collateral either before, concurrently with or after pursuing or enforcing its rights and remedies hereunder. Any one or more successive or concurrent actions or proceedings may be brought against each Borrower under this Section 2.4.10, either in the same action, if any, brought against any one or more of Borrowers or in separate actions or proceedings, as often as Lender may deem expedient or advisable. Without limiting the foregoing, it is specifically understood that any modification, limitation or discharge of any of the liabilities or obligations of any one or more of Borrowers, any other guarantor or any obligor under any of the Financing Documents, arising out of, or by virtue of, any bankruptcy, arrangement, reorganization or similar proceeding for relief of debtors under federal or state law initiated by or against any one or more of Borrowers, in their respective capacities as borrowers and guarantors under this Section 2.4.10, or under any of the Financing Documents shall not modify, limit, lessen, reduce, impair, discharge, or otherwise affect the liability of each Borrower under this Section 2.4.10 in any manner whatsoever, and this Section 2.4.10 shall remain and continue in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, force and shall in no way impair or affect this Guaranty or the rights of the Lender Group hereineffect. It is the intention intent and purpose of each Guarantor and the Administrative Agent this Section 2.4.10 that each Guarantor’s Borrower shall and does hereby waive all rights and benefits which might accrue to any other guarantor by reason of any such proceeding, and Borrowers agree that they shall be liable for the full amount of the obligations hereunder shall beand liabilities under this Section 2.4.10, but not in excess regardless of, and irrespective to, any modification, limitation or discharge of the Maximum Guaranteed Amount 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 herein defined)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 Section 2.4.10, the Notes or any of the other Financing Documents;
(vi) all errors and omissions in connection with Lender’s administration of all indebtedness guaranteed by this Section 2.4.10, except errors and omissions resulting from acts of bad faith;
(vii) any right or claim of right to cause a marshalling of the assets of any one or more of the other Borrowers;
(viii) any act or omission of Lender which changes the scope of the risk as guarantor hereunder; and
(ix) all other notices and demands otherwise required by law which Borrower may lawfully waive. The “Maximum Guaranteed Amount” Within ten (10) days following any request of Lender so to do, each Borrower will furnish Lender and such other persons as Lender may direct with a written certificate, duly acknowledged stating in detail whether or not any credits, offsets or defenses exist with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorsSection 2.4.10.
Appears in 2 contracts
Sources: Financing and Security Agreement (Gp Strategies Corp), Financing and Security Agreement (Gp Strategies Corp)
Guaranty. (a) Each U.S. Loan Guarantor 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 Lenders the prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of the Secured Obligations and all costs and expenses including, without limitation, all court costs and attorneys’ and paralegals’ fees and expenses paid or incurred by the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) Issuing Bank and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment Lenders in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group endeavoring to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations Secured Obligations from, or in prosecuting any action against, either Borrower, any Loan Guarantor or any other guarantor of such Guarantor pursuant to this Guaranty; it being the purpose and intent all or any part of the Guarantors Secured Obligations (such costs and expenses, together with the Lender Group Secured Obligations, collectively the “U.S. Guaranteed Obligations”). Each U.S. Loan Guarantor further agrees that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law U.S. Guaranteed Obligations may be extended or otherwise, such Guarantor’s undertakings hereunder shall not be released, renewed in whole or in partpart without notice to or further assent from it, by and that it remains bound upon its guarantee notwithstanding any action such extension or thing which mightrenewal.
(b) Each Foreign Loan Guarantor hereby agrees that it is jointly and severally liable for, but for this paragraph of this Guarantyand, be deemed a legal or equitable discharge of a surety or guarantoras primary obligor and not merely as surety, or by reason of any waiverabsolutely and unconditionally guarantees to the Lenders the prompt payment when due, omission of the Lender Groupwhether at stated maturity, or any of them, or their failure to proceed promptly upon acceleration or otherwise, and at all times thereafter, of the Canadian Secured Obligations and all costs and expenses including, without limitation, all court costs and attorneys’ and paralegals’ fees and expenses paid or incurred by reason the Administrative Agent, the Issuing Bank and the Lenders in endeavoring to collect all or any part of the Canadian Secured Obligations from, or in prosecuting any action taken or omitted by the Lender Groupagainst, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any either Borrower, on the one hand, and any member of the Lender Group, on the other hand, Loan Guarantor or any other guarantor of all or suretyany part of the Canadian Secured Obligations (such costs and expenses, together with the Canadian Secured Obligations, collectively the “Foreign Guaranteed Obligations” and, together with the U.S. Guaranteed Obligations, the “Guaranteed Obligations”). Each Foreign Loan Guarantor further agrees that the Foreign Guaranteed Obligations may be extended or renewed in whole or in part without notice to or further assent from it, and that it remains bound upon its guarantee notwithstanding any such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, extension or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waiversrenewal.
(fc) The Lender Group, All terms of this Loan Guaranty apply to and may be enforced by or any of them, may, without demand or notice on behalf of any kind upon domestic or to foreign branch or Affiliate of any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to Lender that extended any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupGuaranteed Obligations.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 2 contracts
Sources: Credit Agreement (Indalex Holdings Finance Inc), Credit Agreement (Indalex Holding Corp.)
Guaranty. (a) Each Guarantor In recognition of the direct and indirect benefits to be received by Guarantors from the proceeds of the Term Loans and by virtue of the Term Loans to be made to Borrower, each of the Guarantors, jointly and severally, hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as a surety the full and prompt payment when due, whether upon maturity, acceleration, or otherwise, of all of the Guarantied Obligations. If any or all of the Obligations constituting Guarantied Obligations becomes due and payable, each of the Guarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to the Administrative pay such indebtedness to Agent, for the benefit of the Lender Group, the full together with any and prompt payment of the Obligations, including any interest therein all expenses (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented Lender Group Expenses) that may be incurred by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor Agent or any other Person shall become in any other way responsible to member of the Lender GroupGroup in demanding, enforcing, or collecting any of them, the Guarantied Obligations (including the enforcement of any collateral for or in respect of the such Guarantied Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, collateral for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty). If claim is ever made upon Agent or any other member of the Lender Group for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Guarantied Obligations and any of Agent or any other member of the Lender Group repays all or part of said amount by reason of (i) any judgment, decree, or order of any court or administrative body having jurisdiction over such payee or any of its property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including Borrower or any Guarantor), then and in each such event, each of the Guarantors agrees that any such judgment, decree, order, settlement, or compromise shall be binding upon the Guarantors, notwithstanding any revocation (or purported revocation) of this Guaranty or other instrument evidencing any liability of any Grantor, and the Guarantors shall be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) Additionally, each of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the Guarantied Obligations to Agent, for the benefit of the Lender Group, whether or not due or payable by any Loan Party upon the occurrence of any of the events specified in Section 8.4 or 8.5 of the Credit Agreement, and irrevocably and unconditionally promises to pay such indebtedness to Agent, for the benefit of the Lender Group, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United States.
(c) The liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other guaranty of the Guarantied Obligations, whether executed by any other Guarantor or by any other Person, and the liability of each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking, (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Grantor, (iii) any payment made to Agent or any other member of the Lender Group on account of the Obligations which Agent or such other member of the Lender Group repays to any Grantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, (iv) any action or inaction by Agent or any other member of the Lender Group, or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Obligations or of any security therefor.
(d) This Guaranty includes all present and future Guarantied Obligations including any under transactions continuing, compromising, extending, increasing, modifying, releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Agent, (ii) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any member of the Lender Group in existence on the date of such revocation, (iv) no payment by any Guarantor, Borrower, or from any other source, prior to the date of Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Agent (for the benefit of the Lender Group) and its successors, transferees, or assigns.
(e) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of any other Guarantor or Grantor or any other Person and a separate action or party actions may be brought and prosecuted against one or more of the Guarantors whether or not action is brought against any other Guarantor or Grantor or any other Person and whether or not any other Guarantor or Grantor or any other Person be joined in any such action or actions. Each of the Guarantors waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Grantor or other circumstance which operates to toll any statute of limitations as to any Grantor shall operate to toll the statute of limitations as to each of the Guarantors.
(f) Each of the Guarantors authorizes Agent, the other members of the Lender Group without notice or demand, and without affecting or impairing its liability hereunder, from time to time to:
(i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Obligations (including Borrowersany increase or decrease in the principal amount thereof or the rate of interest or fees thereon); or (B) relating to any security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Obligations as so changed, extended, renewed, or altered;
(ii) take and hold security for the payment of the Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Obligations or any of the Guarantied Obligations (including any of the obligations of all or any of the Guarantors under this Guaranty) incurred directly or indirectly in respect thereof or hereof, or any offset on account thereof;
(iii) exercise or refrain from exercising any rights against any Grantor;
(iv) release or substitute any one or more endorsers, guarantors, any Grantor, or other obligors;
(v) settle or compromise any of the Obligations, any security therefor, or any liability (including any of those of any of the Guarantors under this Guaranty Guaranty) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Grantor to its creditors;
(vi) apply any sums by whomever paid or however realized to any liability or liabilities of any Grantor to Agent or any other member of the Lender Group regardless of what liability or liabilities of such Grantor remain unpaid;
(vii) consent to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Document, or any of the instruments or agreements referred to herein or therein, or otherwise with respect amend, modify, or supplement this Agreement, any other Loan Document, or any of such other instruments or agreements; or
(viii) take any other action that could, under otherwise applicable principles of law, give rise to a legal or equitable discharge of one or more of the Obligations in any action Guarantors from all or proceeding brought by the Administrative part of its liabilities under this Guaranty.
(g) It is not necessary for Agent or any other member of the Lender Group to collect inquire into the Obligations capacity or any portion thereof, or to enforce the obligations powers of any of the Guarantors under this Guarantyor the officers, directors, partners or agents acting or purporting to act on their behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall be guarantied hereunder.
(dh) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Each Guarantor jointly and severally guarantees that the Guarantied Obligations will be paid strictly in any way under this Guaranty, (i) take such further or other security or securities for accordance with the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions terms of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality regardless of the foregoingany law, regulation, or of Section 3.1(e), it is understood that the Lender Group, order now or hereafter in effect in any jurisdiction affecting any of them, may, without exonerating such terms or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group with respect thereto. The obligations of each Guarantor under this Guaranty are independent of the Guarantied Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any such action or actions. The liability of each Guarantor under their respective control for this Guaranty shall be absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any purpose. If defense it may now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(ii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guarantied Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any increase in the Guarantied Obligations resulting from the extension of additional credit;
(iii) any taking, exchange, release, or non-perfection of any Lien in and to any Collateral, or any taking, release, amendment, waiver of, or consent to departure from any other guaranty, for all or any of the extent Guarantied Obligations;
(iv) the existence of any claim, set-off, defense, or other right that any Guarantor makes may have at any payment to the Administrative time against any Person, including Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction member of the Lender Group.;
(gv) The creation any defense, set-off, counterclaim, or existence claim, of any kind or nature, arising directly or indirectly from time to time the present or future lack of Obligations in excess perfection, sufficiency, validity, or enforceability of the amount committed to Guarantied Obligations or outstanding on the date any security therefor;
(vi) any right or defense arising by reason of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair claim or affect this Guaranty or the rights defense based upon an election of remedies by any member of the Lender Group herein. It is the intention including any defense based upon an impairment or elimination of each Guarantor and the Administrative Agent that each such Guarantor’s obligations hereunder shall berights of subrogation, but not in excess reimbursement, contribution, or indemnity of such Guarantor against any other Grantor or any guarantors or sureties;
(vii) any change, restructuring, or termination of the corporate, limited liability company, or partnership structure or existence of any Grantor; or
(viii) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void Grantor or voidable as would otherwise be held any other guarantor or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorssurety.
Appears in 2 contracts
Sources: Subordination Agreement, Subordination Agreement (Nuverra Environmental Solutions, Inc.)
Guaranty. (a) Each Guarantor hereby Guarantor, jointly and severally, irrevocably, absolutely and unconditionally guarantees as a primary obligor and not merely as surety to the Creditors the full and prompt payment when due (whether at the stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, as applicable) of all Obligations of the Borrowers and each Guarantor (other than such Guarantor’s own Obligations) (the “Guaranteed Obligations”). Each party hereto understands, agrees and confirms that, if any or all of the Guaranteed Obligations becomes due and payable, subject to the expiration of any applicable grace or cure period expressly set forth in the Credit Agreement, the Administrative Agent, Agent for the benefit of the Lender Group, Creditors may enforce this Guaranty up to the full amount of the Guaranteed Obligations against such Guarantor without proceeding against any other Guarantor (as defined in the Credit Agreement) or any Borrower, and prompt such Guarantor agrees to pay such Guaranteed Obligations to the Administrative Agent for the benefit of the Administrative Agent and/or the other Creditors, on demand. Each Guarantor further agrees that the due and punctual payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty Borrower may be extended or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be releasedrenewed, in whole or in part, by without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any action such extension or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason renewal of any waiverObligation. This Guaranty is a guaranty of payment and not of collection.
(b) Additionally, omission of each Guarantor, jointly and severally, unconditionally, absolutely and irrevocably, guarantees the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason payment of any action taken or omitted by the Lender Group, or any of them, and all Guaranteed Obligations whether or not such action due or failure to act varies or increases payable by any Borrower upon the risk of, or affects the rights or remedies of, such Guarantor or by reason occurrence in respect of any further dealings between any Borrower, on the one hand, and any member Borrower of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing actsevents specified in Section 7(h) or (i) of the Credit Agreement, omissionsand unconditionally, thingsabsolutely and irrevocably, agreements or waivers.
(f) The Lender Groupjointly and severally, promises to pay such Guaranteed Obligations to the Creditors, or any of themorder, may, without demand or notice following the occurrence in respect of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid Borrower of any of the Obligations events specified in Section 7(h) or (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%i) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Groupon demand.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 2 contracts
Sources: Revolving Credit Agreement (CF Industries Holdings, Inc.), Revolving Credit Agreement (CF Industries Holdings, Inc.)
Guaranty. (a) Each Guarantor Borrower hereby unconditionally and irrevocably, guarantees to the Administrative Agent, for Lender:
(i) the benefit of due and punctual payment in full (and not merely the Lender Group, collectibility) by the full and prompt payment other Borrowers of the Obligations, including any unpaid and accrued interest therein (including interest as provided thereon, in each case when due and payable, all according to the terms of this Agreement, accruing after the filing Notes and the other Financing Documents;
(ii) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of a petition initiating all other sums and charges which may at any Insolvency Proceedingstime be due and payable in accordance with this Agreement, whether the Notes or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes any of the Bankruptcy Code or is an allowed claim other Financing Documents;
(iii) the due and punctual performance by the other Borrowers of all of the other terms, covenants and conditions contained in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromFinancing Documents; and
(iv) all the other Obligations of the other Borrowers.
(b) Regardless The obligations and liabilities of whether any proposed each Borrower as a guarantor or any other Person under this Section 2.3.8 shall become in any other way responsible to the Lender Groupbe absolute and unconditional and joint and several, or any of them, for or in respect irrespective of the Obligations genuineness, validity, priority, regularity or any part thereofenforceability of this Agreement, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations Notes or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all Financing Documents or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing other circumstance which might, but for this paragraph of this Guaranty, be deemed might otherwise constitute a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of . Each Borrower in its capacity as a guarantor expressly agrees that the Lender Groupmay, 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 of themdefaults under, or their failure grant any other indulgences under or with respect to proceed promptly any of the Financing Documents;
(ii) modify, amend, change or otherwise, or by reason terminate any provisions of any action taken of the Financing Documents;
(iii) grant extensions or omitted by renewals of or with respect to the Lender GroupCredit Facilities, the Notes or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.Financing Documents;
(fiv) The Lender Groupeffect any release, subordination, compromise or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or settlement in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance connection with this Agreement, any depositsof the Notes or any of the other Financing Documents;
(v) agree to the substitution, propertyexchange, balancesrelease or other disposition of the Collateral or any part thereof, credit accounts or moneys any other collateral for the Loan or to the subordination of any Guarantor lien or security interest therein;
(vi) make advances for the purpose of performing any term, provision or covenant contained in the possession of this Agreement, any member of the Lender Group Notes or under their respective control for any purpose. If 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 that permitted by the provisions of this Agreement;
(ix) deal in all respects with the other Borrowers as if this Section 2.3.8 were not in effect;
(x) effect any Guarantor makes release, compromise or settlement with any payment to of the Administrative Agent other Borrowers, whether in their capacity as a Borrower or as a guarantor under this Section 2.3.8, or any other Person pursuant 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 in respect of this Guaranty, defense based upon any claim which such Guarantor 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 by reason thereof shall be subject and subordinate with respect to this Agreement, the Notes or any of the other Financing Documents, whether pursuant to the prior payment terms thereof or by operation of law. Without limiting the generality of the foregoing, the Lender shall not be required to make any demand upon any of the Borrowers, or to sell the Collateral or otherwise pursue, enforce or exhaust its remedies against the Borrowers or the Collateral either before, concurrently with or after pursuing or enforcing its rights and remedies hereunder. Any one or more successive or concurrent actions or proceedings may be brought against each Borrower under this Section 2.3.8, either in the same action, if any, brought against any one or more of the Borrowers or in separate actions or proceedings, as often as the Lender may deem expedient or advisable. Without limiting the foregoing, it is specifically understood that any modification, limitation or discharge of any of the liabilities or obligations of any one or more of the Borrowers, any other guarantor or any obligor under any of the Financing Documents, arising out of, or by virtue of, any bankruptcy, arrangement, reorganization or similar proceeding for relief of debtors under federal or state law initiated by or against any one or more of the Borrowers, in their respective capacities as borrowers and guarantors under this Section 2.3.8, or under any of the Financing Documents shall not modify, limit, lessen, reduce, impair, discharge, or otherwise affect the liability of each Borrower under this Section 2.3.8 in any manner whatsoever, and this Section 2.3.8 shall remain and continue in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, force and shall in no way impair or affect this Guaranty or the rights of the Lender Group hereineffect. It is the intention intent and purpose of this Section 2.3.8 that each Guarantor Borrower shall and does hereby waive all rights and benefits which might accrue to any other guarantor by reason of any such proceeding, and the Administrative Agent Borrowers agree that each Guarantor’s they shall be liable for the full amount of the obligations hereunder shall beand liabilities under this Section 2.3.8, but not in excess regardless of, and irrespective to, any modification, limitation or discharge of the Maximum Guaranteed Amount 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 herein defined)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 Section 2.3.8, the Notes or any of the other Financing Documents;
(vi) all errors and omissions in connection with the Lender's administration of all indebtedness guaranteed by this Section 2.3.8, except errors and omissions resulting from the Lender's gross negligence or willful misconduct;
(vii) any right or claim of right to cause a marshalling of the assets of any one or more of the other Borrowers;
(viii) any act or omission of the Lender which changes the scope of the risk as guarantor hereunder; and
(ix) all other notices and demands otherwise required by law which the Borrower may lawfully waive. The “Maximum Guaranteed Amount” Within ten (10) days following any request of the Lender so to do, each Borrower will furnish the Lender and such other persons as the Lender may direct with a written certificate, duly acknowledged stating in detail whether or not any credits, offsets or defenses exist with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorsSection 2.3.8.
Appears in 2 contracts
Sources: Financing Agreement (Argan Inc), Financing and Security Agreement (Argan Inc)
Guaranty. (a) Each The Guarantor hereby irrevocably and unconditionally guarantees the punctual payment when due, in lawful money of the United States of America, or in another currency as provided for in Section 3.2(a) of the Credit Agreement (the “Obligation Currency”), whether at stated maturity, by acceleration or otherwise, of the Loans, L/C Obligations, and all other Obligations owing by the Borrower to the Administrative Agent, for the benefit of the Lender GroupLenders, the full Administrative Agent and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender GroupIssuing Banks, or any of them, for or in respect of under the Obligations or any part Credit Agreement, the Notes, and the other Credit Documents, including all renewals, extensions, modifications and refinancings thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereofowing, whether for principal, interest, fees, expenses or otherwise, and any and all reasonable out-of-pocket expenses (including reasonable attorneys’ fees and expenses) incurred by the Lenders, the Issuing Banks or the Administrative Agent in enforcing any rights under this Guaranty or otherwise(collectively, shall cease to be so liablethe “Guaranteed Obligations”), each including without limitation, all interest which, but for the filing of a petition in bankruptcy, would accrue on any principal portion of the Guaranteed Obligations. Any and all payments by the Guarantor hereby declares and agrees that this Guaranty hereunder shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or made in the case Obligation Currency free and clear of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives without deduction for any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim counterclaim, or cross-claim of withholding so that, in each case, each Guaranteed Party will receive, after giving effect to any nature whatsoever with respect Taxes (other than Excluded Taxes), the full amount, in the Obligation Currency, that it would otherwise be entitled to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise receive with respect to the Guaranteed Obligations (but without duplication of amounts for Taxes already included in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) Guaranteed Obligations). The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in this is a guarantee of payment when due, and not of collection, and that this Guaranty may be enforced up to the nature or terms full amount of the Guaranteed Obligations or without proceeding against the Borrower, against any of security for the Loan DocumentsGuaranteed Obligations, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to guaranty covering any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupGuaranteed Obligations.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 2 contracts
Sources: Holdings Guaranty Agreement (Transocean Ltd.), Holdings Guaranty Agreement (Transocean Ltd.)
Guaranty. (a) Each Subject to the provisions of subsection 2.1(b), the Guarantor hereby hereby, jointly and severally, unconditionally and irrevocably, guarantees to the Administrative AgentAgent and the Guaranteed Creditors and their respective successors, for indorsees, transferees and assigns, the benefit prompt and complete payment and performance by the Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Lender Group, Borrower’s Obligations up to but not exceeding the full and prompt payment amount of the Obligations, including any loan obligations plus interest therein (including interest as provided in this Agreement, accruing after the filing and costs of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromenforcement.
(b) Regardless of whether any proposed guarantor Anything herein or any other Person shall become in any other way responsible Loan Document to the Lender Groupcontrary notwithstanding, or any of them, for or in respect the maximum liability of the Obligations or any part thereof, Guarantor hereunder and regardless of whether or not any Person now or hereafter responsible under the other Loan Documents shall in no event exceed the amount which can be guaranteed by the Guarantor under applicable federal and state laws relating to the Lender Group, or any insolvency of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminateddebtors.
(c) Each The Guarantor absolutely, unconditionally and irrevocably waives further agrees to pay any and all right to assert expenses (including, without limitation, all reasonable fees and disbursements of counsel) which may be paid or incurred by the Agent or any defense (other than Guaranteed Creditor in enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or collecting, any or all of the defense of payment Borrower’s Obligations and/or enforcing any rights with respect to, or collecting against, the Guarantor under this Guaranty. This Guaranty shall remain in cash 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 extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this GuarantyCredit Agreement.
(d) The Lender Group, or Guarantor agrees that the Borrower’s Obligations may at any of them, may time and from time to time, time exceed the amount of the liability of the Guarantor hereunder without exonerating impairing this Guaranty or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for affecting the Obligations rights and remedies of the Agent or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedientGuaranteed Creditor hereunder.
(e) Each Guarantor acknowledges and agrees that no change in the nature No payment or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted payments made by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one handGuarantor, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, other Person or received or collected by the Agent or any right of counterclaim Guaranteed Creditor from the Borrower, the Guarantor, any other guarantor or offset any other Person by virtue of any nature action or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, proceeding or any of them, may, without demand set-off or notice of any kind upon appropriation or to any Guarantor, application at any time or from time to time when any amount in reduction of or in payment of the Borrower’s Obligations shall be due and payable hereunder by any Guarantordeemed to modify, if Borrowers shall not have timely paid any reduce, release or otherwise affect the liability of the Obligations Guarantor hereunder which shall, notwithstanding any such payment or payments (other than payments made by the Borrower or the Guarantor in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) respect of the Letter Borrower’s Obligations or payments received or collected from the Guarantor in respect of Credit the Borrower’s Obligations), set-off and appropriate and apply remain liable for the Borrower’s Obligations up to any portion the maximum liability of the Guarantor hereunder until the Borrower’s Obligations hereby guaranteedare paid in full.
(f) The Guarantor agrees that whenever, and in such order of application as the Administrative Agent may at any time, or from time to time elect in accordance with this Agreementtime, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes it shall make any payment to the Administrative Agent or any other Person pursuant to or Guaranteed Creditor on account of its liability hereunder, it will notify the Agent in respect of this Guaranty, any claim which writing that such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of is made under this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by for such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorspurpose.
Appears in 2 contracts
Sources: Guaranty (Resaca Exploitation, Inc.), Guaranty (Resaca Exploitation, Inc.)
Guaranty. (a) Each Guarantor jointly and severally hereby unconditionally and irrevocably (i) guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment and performance when due of the all now existing and hereafter arising Obligations, including and (ii) agrees to pay any interest therein and all costs, fees and expenses (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable in-house and external attorneys’ fees and expenses if (but, in the obligations represented case of in-house counsels’ fees and expenses, without duplication of work performed by outside counsel)) reasonably incurred by Lender Parties in enforcing the Guaranty set forth in this Article XIV (collectively, the “Guaranteed Obligations”). This Guaranty is a continuing guaranty of payment and performance when due and not of collection which shall not be discharged until all Guaranteed Obligations are collected by law, through an attorney-at-law, or under advice therefromindefeasibly paid in cash and performed in full and this Agreement is terminated.
(b) Regardless Each Guarantor jointly and severally hereby unconditionally and irrevocably (i) guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any Applicable Law now or hereafter in effect in any jurisdiction affecting any such terms or the rights of any Lender Party, and (ii) waives any rights and defenses it may now or hereafter have. The obligations of each Guarantor under this Article XIV are independent of the Guaranteed Obligations, and Agent may enforce the this Article XIV independently as to each Guarantor and/or each remedy, Collateral or other security Agent may at any time have, without first proceeding against or joining any other Person, Collateral or other security for the Guaranteed Obligations. A separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any proposed guarantor or action is brought against any other Person shall become 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 way responsible 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 GroupParties under any Loan Document but for, or and shall be unaffected by, any of themthe following:
(i) lack of genuineness, for validity, regularity or in respect enforceability of any of the Obligations or Loan Document;
(ii) change in the time, manner or place of payment of, or in any part thereofother term of, and regardless all or any of whether or not any Person now or hereafter responsible to the Lender GroupGuaranteed Obligations, or any rescission, amendment or modification to, or waiver or compromise or acceleration of themor any consent with respect to, for any of the Guaranteed Obligations or any part thereofLoan Document or any other guaranty or the failure to obtain the consent or any Guarantor or other Person with respect thereto;
(iii) the existence, whether value or condition of, or the failure by any Lender Party to perfect and maintain any Lien in, or to preserve any rights to, or the release or foreclosure of, any Collateral or other security for the Obligations;
(iv) the change, restructuring, dissolution or termination of the structure or existence of any Credit Party or the insolvency or bankruptcy of any Credit Party under this Guaranty any Debtor Relief Law;
(v) any action taken or otherwiseomitted by any Lender Party or any failure of any Lender Party to assert any claim or demand or to enforce any right or remedy against any Credit Party or any other guarantor; or
(vi) other action or circumstance (including, shall cease to be so liablewithout limitation, each Guarantor hereby declares and agrees any statute of limitations) or any existence of or reliance on any representation by Lender Parties that this Guaranty shall be might otherwise constitute a joint and several obligationdefense available to, shall be or a continuing guaranty and shall be operative and binding until legal or equitable discharge of, any co-obligor, Credit Party or any other guarantor or surety (other than actual indefeasible payment of the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminatedcash).
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) 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 change in the nature representation or terms warranty with respect to validity, genuineness, regularity, or enforceability of the Obligations or any of the Loan Documents, and have no duty or other agreements, instruments or contracts evidencing, related responsibility whatsoever to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in respect to the possession of any member management and maintenance of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent Guaranteed Obligations or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupCollateral.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 2 contracts
Sources: Credit Agreement (Fibernet Telecom Group Inc\), Credit Agreement (Fibernet Telecom Group Inc\)
Guaranty. Guarantor, upon the occurrence of a Springing Recourse Event, hereby absolutely, irrevocably and unconditionally guaranties the due and punctual payment and performance when due, whether at stated maturity, by acceleration or otherwise, of all of the following (collectively referred to as the “Guarantied Obligations”): (a) Each Guarantor hereby guarantees all indebtedness and obligations owing by the Borrower to any Lender or the Administrative AgentAgent under or in connection with the Term Loan Agreement and any other Loan Document, for including without limitation, the benefit repayment of all principal of the Lender GroupTerm Loans and the Related Swap Obligations (other than Excluded Swap Obligations), and the full and prompt payment of all interest, fees, charges, attorneys’ fees and other amounts payable to any Lender or the ObligationsAgent thereunder or in connection therewith; (b) any and all extensions, including any interest therein (including interest as provided in this Agreementrenewals, accruing after the filing of a petition initiating any Insolvency Proceedingsmodifications, whether amendments or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes substitutions of the Bankruptcy Code or is an allowed claim in such proceeding)foregoing; (c) all expenses, plus including, without limitation, reasonable attorneys’ fees and expenses if disbursements, that are incurred by the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless Lenders and the Agent in the enforcement of whether any proposed guarantor of the foregoing or any obligation of Guarantor hereunder; and (d) all other Person shall become in any other way responsible to Obligations. For the Lender Grouppurposes of this Guaranty, or the occurrence of any of them, for or the events described in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty (1)-(3) below shall be a joint “Springing Recourse Event”:
(A) Guarantor fails to perform or comply with any of the following terms (each, a “Guarantor Covenant Breach”):
(i) the Guarantor shall not, directly or indirectly, enter into or conduct any business other than in connection with the ownership, acquisition and several obligationdisposition of general or limited partnership interests in the Borrower and the management of the business of the Borrower, and such activities as are incidental thereto, all of which shall be a continuing guaranty and solely in furtherance of the business of the Borrower;
(ii) the Guarantor shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash not own any assets other than (A) equity interests (or rights, options or warrants in respect thereof) of the case of Letter of Credit ObligationsBorrower, secured through delivery of cash collateral in an amount equal (B) up to a one hundred five percent (1051%) equity interest in any partnership or limited liability company at least ninety-nine percent (99%) of the Letter equity of Credit Obligationswhich is owned, directly or indirectly, by the Borrower; (C) money that has been distributed to Guarantor by Borrower or a Subsidiary of Borrower described in clause (ii)(B) above in accordance with Section 6.11 of the Term Loan Agreement that is held for ten (10) Business Days or less pending further distribution to equity holders of the Guarantor, (D) assets received by the Guarantor from third parties (including, without limitation, the proceeds from any issuance of equity interests), 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 the Revolving Loan Commitment shall have been terminated.
(cD) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense above) or equity interests (other than equity interests permitted in clauses (ii)(A) and (B) above);
(iii) the defense 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 issuance of equity interests), subject to the terms of clause (ii)(D) above;
(iv) the Guarantor shall not merge or consolidate (except as permitted in the Term Loan Agreement), or dissolve, liquidate or otherwise wind up its business, affairs or assets;
(v) the Guarantor shall not guarantee, or otherwise be or become obligated in respect of, any Indebtedness (which for the purposes hereof shall include any obligations under any Swap Contract but shall exclude (A) [intentionally omitted], (B) all obligations of the Guarantor to purchase, redeem, retire, defease or otherwise make any payment in cash respect of any Mandatorily Redeemable Stock (as hereinafter defined) issued by the Guarantor or any other Person, (C) any liability pursuant to non-recourse carveout guaranties with customary exceptions for fraud, misapplication of funds, environmental indemnities, voluntary bankruptcy, collusive involuntary bankruptcy and other similar customary exceptions to recourse liability (a “Customary Nonrecourse Debt Guaranty”) until a claim is made with respect thereto (provided that for the purposes of this clause (v), the Guarantor shall not be deemed to have violated this covenant with respect to Indebtedness under a Customary Nonrecourse Debt Guaranty until a judgment is obtained with respect to claims under Customary Nonrecourse Debt Guaranties individually or in fullthe aggregate of $30,000,000 or greater), and (D) any liability pursuant to a springing guaranty on substantially the extent of its obligations hereunder, or a defense same terms as the Springing Guaranty; and provided further that such the Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty (x) Indebtedness of Borrower in place as of March 31, 2014 and (y) Indebtedness of Inland Diversified Real Estate Trust, Inc., a Maryland corporation (“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 the obligations in anticipation of the Guarantors under this Guaranty or the obligations merger of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any Inland Diversified with and into KRG Magellan, LLC, solely by virtue of the Guarantors under this Guaranty or otherwise Guarantor being the general partner of Borrower and not as a guarantor, shall be excluded from the foregoing provided such liability is not increased); and
(B) with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations a Guarantor Covenant Breach of any event described in (1)(A)(i)-(iii) above, the passage of forty-five (45) days after the Guarantors under this Guaranty.
(d) The Lender Group, or any first to occur of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, either (i) take Borrower or Guarantor becoming aware of such further or other security or securities for the Obligations or any part thereof as they may deem properGuarantor Covenant Breach, or (ii) releaseAgent notifying Borrower in writing of any such Guarantor Covenant Breach, discharge, abandon or otherwise deal or
(C) with or fail respect to deal with any a Guarantor Covenant Breach of the Obligations event described in clause (1)(A)(v) above, the passage of ten (10) Business Days (or any security forty-five (45) days if the aggregate Indebtedness for the purposes of clause (1)(A)(v) above is less than $10,000,000), after the first to occur of either (i) Borrower or securities therefor or any part thereof now or hereafter held by the Lender Group, or any Guarantor becoming aware of themsuch Guarantor Covenant Breach, or (iiiii) amend, modify, extend, accelerate or waive Agent notifying Borrower in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage writing of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.Guarantor Covenant Breach; or
(e2) Each Borrower or Guarantor acknowledges and agrees that no change in shall commence a voluntary case under the nature or terms Bankruptcy Code of the Obligations or any of the Loan Documents1978, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other handas amended, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent federal bankruptcy or any other Person pursuant domestic or foreign laws relating to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratoriumwinding-up, fraudulent conveyance 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 officer or director thereof shall collude with, or otherwise assist any party in connection with any 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 guaranty under this Guaranty of the Guarantied Obligations shall automatically become fully effective upon the occurrence of any Springing Recourse Event and no other similar laws relating documentation or notice shall be required to evidence the insolvency of debtorssame.
Appears in 2 contracts
Sources: Springing Guaranty (Kite Realty Group, L.P.), Springing Guaranty (Kite Realty Group, L.P.)
Guaranty. (a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives guarantees to Administrative Agent for the benefit of Administrative Agent and the Lenders and becomes surety for each of the following, but only to the extent that the same are not timely paid by Borrower: (i) subject to the terms and conditions of Section 27 below, the full and timely payment when due, whether by declaration, acceleration or otherwise, of all principal of the Loan including the full and timely payment of principal when due pursuant to the terms of the Loan Agreement, (ii) any accrued and unpaid obligations pursuant to any Lender-Provided Swap other than (and expressly excluding) any obligations under any Swaps that are not secured by the Property (any such obligations, “Lender-Provided Swap Obligations”) relating to the Loan, and any and all right to assert any defense present and future Swaps and Lender-Provided Swaps (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)Excluded Swap Obligations) and (iii), set-off, counterclaim or cross-claim the reasonable expenses and fees of legal counsel in connection with any nature whatsoever with respect collection and/or enforcement relative to this Guaranty or (“Costs”) (all amounts due, debts, liabilities and payment obligations described in this Section 2 which are not timely paid by Borrower are hereinafter collectively referred to as the obligations “Guaranteed Obligations”). This is a guaranty of the Guarantors payment and performance and not of collection. The liability of Guarantor under this Guaranty is direct and immediate and not conditional or contingent upon the obligations pursuit of any remedies against Borrower or any other person (including other guarantors, if any), nor against the collateral for the Loan. To the extent permitted by applicable law, Guarantor waives any right to require that an action be brought against Borrower or any other Person or party to require that resort be had to any collateral for the Loan or to any balance of any deposit account or credit on the books of Administrative Agent or any Lender in favor of Borrower or any other Person. In the event, on account of the Bankruptcy Reform Act of 1978, as amended, or any other debtor relief law (whether statutory, common law, case law or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, which may be or become applicable, Borrower is relieved of or fails to incur any debt, obligation or liability as provided in the Loan Documents, Guarantor will nevertheless be fully liable for the Guaranteed Obligations. In the event of a Default or Event of Default which is not cured within any applicable grace or cure period, Administrative Agent and/or the Required Lenders will have the right to enforce their respective rights, powers and remedies (including Borrowersforeclosure of all or any portion of the collateral for the Loan) relating thereunder or hereunder, in any order, and all rights, powers and remedies available to this Guaranty Administrative Agent and/or the Required Lenders in such event will be non-exclusive and cumulative of all other rights, powers and remedies provided thereunder or hereunder or by law or in equity. If the obligations Guaranteed Obligations are partially paid or discharged by reason of the exercise of any of the Guarantors under remedies available to Administrative Agent and/or the Required Lenders, this Guaranty or otherwise with respect to the Obligations will nevertheless remain in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole full force and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangementseffect, and realize upon any security Guarantor will remain liable for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit remaining Guaranteed Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to even though any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim rights which such Guarantor may have against Borrowers Borrower may be destroyed or diminished by reason thereof shall be subject and subordinate to the prior payment in full exercise of the Obligations to the satisfaction of the Lender Groupany such remedy.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 2 contracts
Sources: Payment Guaranty Agreement (KBS Real Estate Investment Trust III, Inc.), Payment Guaranty Agreement (KBS Real Estate Investment Trust III, Inc.)
Guaranty. (a) Each Guarantor hereby of the FNIS Guarantors hereby, jointly and severally, unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Lender GroupGuaranteed Parties and their respective successors, indorsees, transferees and assigns, the full prompt and prompt complete payment and performance by the Borrower when due (whether at stated maturity, by acceleration or otherwise) of the Borrower Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor Anything herein or any other Person shall become in any other way responsible Loan Document to the Lender Groupcontrary notwithstanding, or any the maximum liability of them, for or each FNIS Guarantor hereunder and under the other Loan Documents shall in respect of no event exceed the Obligations or any part thereof, amount which can be guaranteed by such FNIS Guarantor under applicable federal and regardless of whether or not any Person now or hereafter responsible state laws relating to the Lender Group, or any insolvency of them, for debtors (after giving effect to the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid right of contribution established in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminatedSection 3).
(c) Each FNIS Guarantor absolutely, unconditionally agrees that the Borrower Obligations may at any time and irrevocably waives from time to time exceed the amount of the liability of such FNIS Guarantor hereunder without impairing the guarantee contained herein or affecting the rights and remedies of the Administrative Agent or any Lender hereunder.
(d) This Guaranty shall remain in full force and effect until (i) the Commitments have been terminated and (ii) all right to assert any defense the Borrower Obligations (other than the defense of payment in cash in full, to the extent of its contingent indemnity obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty unasserted claims) and the Guarantor Obligations under the guarantee contained herein shall have been satisfied by payment in full and no Letter of Credit shall be outstanding (or have been cash collateralized or otherwise subject to arrangements reasonably acceptable to the obligations Administrative Agent), notwithstanding that from time to time during the term of the Guarantors under this Guaranty Credit Agreement the Borrower may be free from any Borrower Obligations.
(e) No payment made by the Borrower, any of the Guarantors, any other guarantor or the obligations of any other Person or party (including Borrowers) relating to this Guaranty received or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought collected by the Administrative Agent or any other member of Lender from the Lender Group to collect the Obligations or any portion thereofBorrower, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender GroupGuarantors, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, other Person by virtue of any action or proceeding or any right of counterclaim set-off or offset of any nature appropriation or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, application at any time or from time to time when any amount in reduction of or in payment of the Borrower Obligations shall be deemed to modify, reduce, release or otherwise affect the liability of any FNIS Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by such FNIS Guarantor in respect of the Borrower Obligations or any payment received or collected from such FNIS Guarantor in respect of the Borrower Obligations), remain liable for the Borrower Obligations up to the maximum liability of such FNIS Guarantor hereunder until the Commitments have been terminated and the Borrower Obligations (other than, in each case, indemnities and other contingent obligations not then due and payable hereunder by any Guarantor, if Borrowers shall not have timely payable) are paid any of the Obligations (or in the case of full and no Letter of Credit Obligations, secured through delivery of shall be outstanding (or have been cash collateral in an amount equal collateralized or otherwise subject to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment arrangements reasonably acceptable to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupAgent).
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 2 contracts
Sources: Credit Agreement (Fidelity National Information Services, Inc.), Credit Agreement (Metavante Technologies, Inc.)
Guaranty. (a) Each Guarantor hereby guarantees To induce the Guaranteed Party to the Administrative Agententer into that certain Agreement and Plan of Merger, for the benefit dated as of the Lender Groupdate hereof (as amended, restated, amended and restated, supplemented, waived or otherwise modified from time to time in accordance with the terms thereof, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this “Merger Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding”), plus reasonable attorneys’ fees by and expenses if the obligations represented by this Guaranty are collected by lawamong Guaranteed Party, through an attorney-at-lawApex Merger Sub, or under advice therefrom.
Inc., a Delaware corporation (b“Merger Sub”) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Groupand Apex Intermediate Holdco, or any of themInc., for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liablea Delaware corporation (“Parent”), each Guarantor Sponsor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives guarantees to the 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, 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, its “Maximum Sponsor Percentage”) of all payment obligations of Parent pursuant to Section 8.5(a) or (c) of the Merger Agreement following the termination of the Merger Agreement (the “Obligations”); provided that in no event shall any Sponsor’s aggregate liability under this Guaranty exceed an amount equal to such Sponsor’s Maximum Sponsor Percentage of $100,000,000.00 (such amount, the “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 each Sponsor hereunder shall be 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 Guaranteed Party or any Affiliate thereof under, in respect of, or 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 right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, actions available hereunder or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or applicable Law to enforce the Sponsor’s obligations hereunder in respect of any such Obligations, subject to the terms and conditions of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality In furtherance of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, Guaranteed Party may, without exonerating or releasing any Guarantorin its sole discretion, give up, modify or abstain from perfecting or taking advantage of any security bring and prosecute a separate action against each Sponsor for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations full amount of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such GuarantorSponsor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any Maximum Sponsor Percentage of the Obligations (or in subject to the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit ObligationsCap), set-off and appropriate and apply to regardless of whether action is brought against Parent or whether Parent is joined in any portion of the Obligations hereby guaranteedsuch action or actions. The Guaranteed Party agrees that it, its equityholders, and in such order of application as their respective Affiliates shall not assert any claim hereunder or under the Administrative Agent may from time to time elect in accordance with this Merger Agreement, any depositsdirectly or indirectly, property, balances, credit accounts or moneys of any Guarantor in that the possession of any member of the Lender Group or under their respective control Sponsors are liable for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations an aggregate amount in excess of the Cap or that any individual Sponsor is liable for an amount committed in excess of such Sponsor’s Maximum Sponsor Percentage of the Cap, except that the Company may assert a claim for specific performance of the Equity Commitment Letter to or outstanding on the extent permitted by Section 5 of the Equity Commitment Letter delivered to the Company by the Sponsors as of the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall hereof (the “Equity Commitment Letter”) (it being understood that in no way impair or affect event shall the Company be permitted to both enforce the Equity Commitment Letter and receive payment under this Guaranty or the rights Guaranty). All payments hereunder shall be made in lawful money of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not United States in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorsimmediately available funds.
Appears in 1 contract
Sources: Limited Guaranty (Agiliti, Inc. \De)
Guaranty. (a) Each The Guarantor hereby guarantees (jointly and severally with any other "Guarantor" under the Credit Agreement) to the Administrative AgentAgent and the Lenders (collectively, for the benefit of the Lender Group, "FINANCE PARTIES") the full and prompt punctual payment when due (whether at maturity, by acceleration or otherwise), and in manner specified under the Credit Documents, of all of the Obligations. This Guaranty is an absolute, unconditional and continuing guaranty of the full and punctual payment and not of their collectibility only and is in no way conditioned upon any other means of obtaining their payment. Should the Borrower default in the payment of any of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes obligations of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees Guarantor hereunder shall become immediately due and expenses if payable to the Finance Parties. The obligations represented by of the Guarantor under this Guaranty (the "GUARANTOR OBLIGATIONS") are collected by lawindependent of the Obligations, through an attorney-at-lawand a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, irrespective of whether any action is brought against the Borrower or under advice therefromany other guarantor of the Obligations or whether the Borrower or any such guarantor is joined in any such action or actions.
(b) Regardless of whether any proposed The Guarantor further agrees, as the principal obligor and not as a guarantor or any other Person shall become in any other way responsible only, to pay to the Lender GroupFinance Parties, on demand, all costs and expenses (including court costs and reasonable legal expenses) incurred or any expended by the Finance Parties in connection with the enforcement of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminatedGuaranty.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders agrees to indemnify each Finance Party on demand against any defense to its loss or liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder suffered by any Guarantor, such Finance Party if Borrowers shall not have timely paid any of the Obligations (is or in the case of Letter of Credit Obligationsbecomes, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations)unenforceable, set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts invalid or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Groupillegal.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. (a) Each Guarantor hereby Subject to the provisions of Section 2(b), each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably, guarantees to the Administrative Agent, for the ratable benefit of the Lender GroupSecured Creditors and their respective successors, endorsees, transferees and assigns, the full prompt and prompt complete payment and performance by the Borrower when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor Anything herein or any other Person shall become in any other way responsible Loan Document to the Lender Groupcontrary notwithstanding, or any the maximum liability of them, for or each Guarantor hereunder and under the other Loan Documents shall in respect of no event exceed the Obligations or any part thereof, amount that can be guaranteed by such Guarantor under applicable federal and regardless of whether or not any Person now or hereafter responsible state laws relating to the Lender Group, or any insolvency of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminateddebtors.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives further agrees to pay any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party reasonable expenses (including Borrowersall reasonable fees and disbursements of counsel) relating to this Guaranty that may be paid or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought incurred by the Administrative Agent or any other member Secured Creditor in enforcing or obtaining advice of counsel in respect of any rights with respect to, or collecting, any or all of the Lender Group to collect the Obligations or and/or enforcing any portion thereofrights with respect to, or to enforce the obligations of any of the Guarantors collecting against, such Guarantor under this Guaranty. This Guaranty shall remain in full force and effect until the Obligations are paid in full, the Commitments are terminated, the Letters of Credit are terminated or expired and the Acceptances are matured, notwithstanding that from time to time prior thereto the Borrower may be free from any Obligations.
(d) The Lender Group, or Each Guarantor agrees that the Obligations may at any of them, may time and from time to time, time exceed the amount of the liability of such Guarantor hereunder without exonerating impairing this Guaranty or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for affecting the Obligations rights and remedies of the Administrative Agent or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedientSecured Creditor hereunder.
(e) Each Guarantor acknowledges and agrees that no change in No payment or payments made by the nature or terms of the Obligations or Borrower, any of the Loan DocumentsGuarantors, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, other Person or received or collected by the Administrative Agent or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented toSecured Creditor from the Borrower, any of the foregoing actsGuarantors, omissions, things, agreements or waivers.
(f) The Lender Group, any other guarantor or any of them, may, without demand or notice other Person by virtue of any kind upon action or to proceeding or any Guarantor, set-off or appropriation or application at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any in reduction of or in payment of the Obligations (shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder, which shall, notwithstanding any such payment or payments other than payments made by such Guarantor in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion respect of the Obligations hereby guaranteedor payments received or collected from such Guarantor in respect of the Obligations, remain liable for the Obligations up to the maximum liability of such Guarantor hereunder until the Obligations are paid in full, the Commitments are terminated, no Letters of Credit remain outstanding and in such order of application as the Administrative Agent may no Acceptance remain unmatured.
(f) Each Guarantor agrees that whenever, at any time, or from time to time elect in accordance with this Agreementtime, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes it shall make any payment to the Administrative Agent or any other Person pursuant to or in respect Secured Creditor on account of this Guarantyits liability hereunder, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and it will notify the Administrative Agent in writing that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering payment is made under this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorsfor such purpose.
Appears in 1 contract
Sources: Guaranty (E&s Holdings Corp)
Guaranty. (a) Each U.S. Loan Guarantor (other than those that have delivered a separate Guaranty) hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be it is jointly and severally liable for, and, as a joint primary obligor and several obligationnot merely as surety, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any guarantees to the Secured Parties, the prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of the Secured Obligations and all right costs and expenses to assert any defense the extent required by Section 9.03, paid or incurred by the Administrative Agent, the Issuing Bank and the Lenders in endeavoring to collect 112
(b) Each Canadian Loan Guarantor (other than those that have delivered a separate Guaranty) hereby agrees that it is jointly and severally liable for, and, as a primary obligor and not merely as surety, absolutely, unconditionally and irrevocably guarantees to the defense Secured Parties, the prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of payment in cash in full, the Canadian Secured Obligations and all costs and expenses to the extent of its obligations hereunder, required by Section 9.03 paid or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought incurred by the Administrative Agent or any other member of Agent, the Lender Group Issuing Bank and the Lenders in endeavoring to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities Canadian Secured Obligations from, or in prosecuting any action against, any Canadian Borrower, any Canadian Loan Guarantor or any other guarantor of all or any part of the Canadian Secured Obligations (such costs and expenses, together with the Canadian Secured Obligations, collectively the “Canadian Guaranteed Obligations”); provided, however, that the definition of “Canadian Guaranteed Obligations” shall not create any guarantee by any Canadian Loan Guarantor of (or grant of security interest by any Canadian Loan Guarantor to support, as applicable) any Excluded Swap Obligations of such Canadian Loan Guarantor for purposes of determining any obligations of such any Canadian Loan Guarantor). Each Canadian Loan Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group further agrees that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law Canadian Guaranteed Obligations may be extended or otherwise, such Guarantor’s undertakings hereunder shall not be released, renewed in whole or in partpart without notice to or further assent from it, by and that it remains bound upon its guarantee notwithstanding any action such extension or thing which might, but for this paragraph renewal. All terms of this Guaranty, Loan Guaranty apply to and may be deemed a legal enforced by or equitable discharge of a surety or guarantor, or by reason on behalf of any waiver, omission of the Lender Group, domestic or any of them, foreign branch or their failure to proceed promptly or otherwise, or by reason Affiliate of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to that extended any portion of the Obligations hereby guaranteed, and Canadian Guaranteed Obligations. Notwithstanding anything contained in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and Agreement to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
contrary (g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorizedincluding, without notice to limitation, this Section 10.01), no Canadian Loan Party shall guarantee any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorsU.S. Secured Obligations.
Appears in 1 contract
Guaranty. (a) Each Subject to Section 10.1(b) hereof, each Subsidiary Guarantor hereby guarantees to the Administrative Agentabsolutely, for the benefit of the Lender Group, irrevocably and unconditionally Guaranties the full and prompt payment when due (whether at stated maturity, by acceleration or otherwise) of the Borrower Obligations. The agreements of each Subsidiary Guarantor under this Article 10 constitute a Guaranty of payment, and the Lender shall not have any obligation to enforce any Loan Document or exercise any right or remedy with respect to any collateral security thereunder by any action, including making or perfecting any interest therein (including interest as provided in claim against any Person or any collateral security for any of the Borrower Obligations prior to being entitled to the benefits of this Agreement. The Lender may, accruing after at its option, proceed against the filing Subsidiary Guarantors, or any one or more of a petition initiating them, in the first instance, to enforce the Guarantor Obligations without first proceeding against the Borrower or any Insolvency Proceedingsother Person, whether and without first resorting to any other rights or not such interest accrues or is recoverable against Borrowers after remedies, as the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding)Lender may deem advisable. In furtherance hereof, plus reasonable attorneys’ fees and expenses if the obligations represented Lender is prevented by this Guaranty are collected by lawlaw from collecting or otherwise hindered from collecting or otherwise enforcing any Borrower Obligation in accordance with its terms, through an attorney-at-lawthe Lender shall be entitled to receive hereunder from the Subsidiary Guarantors after demand therefor, the sums that would have been otherwise due had such collection or under advice therefromenforcement not been prevented or hindered.
(b) Regardless Notwithstanding anything to the contrary contained herein, the maximum aggregate amount of whether the obligations of each Subsidiary Guarantor hereunder shall not, as of any proposed guarantor date of determination, exceed the lesser of (i) the greatest amount that is valid and enforceable against such Subsidiary Guarantor under principles of New Jersey State contract law, and (ii) the greatest amount that would not render such Subsidiary Guarantor’s liability hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of Title 11 of the United States Code or any applicable provisions of state law (collectively, the “Fraudulent Transfer Laws”), in each case after giving effect to all other Person shall become in liabilities of such Subsidiary Guarantor, contingent or otherwise, that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any other way responsible to the Lender Group, or any of them, for or liability (A) in respect of intercompany indebtedness to the Obligations Borrower or any part thereofaffiliate or subsidiary of the Borrower, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to extent that such intercompany indebtedness would be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral discharged in an amount equal to one hundred five percent the amount paid by such Subsidiary Guarantor hereunder, and (105%B) under any Guaranty of (1) senior unsecured indebtedness, or (2) indebtedness subordinated in right of payment to any Borrower Obligation, in either case that contains a limitation as to maximum liability similar to that set forth in this Section 10.1(b) and pursuant to which the liability of such Subsidiary Guarantor hereunder is included in the liabilities taken into account in determining such maximum liability) and after giving effect as assets to the value (as determined under the applicable provisions of the Fraudulent Transfer Laws) of any rights to subrogation, contribution, reimbursement, indemnity or similar rights of such Subsidiary Guarantor pursuant to applicable law or any agreement providing for an equitable allocation among such Subsidiary Guarantor and other affiliates or subsidiaries of the Letter Borrower of Credit Obligations) and the Revolving Loan Commitment shall have been terminatedobligations arising under Guaranties by such parties.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Subsidiary Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it Obligations may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or and from time to time when any exceed the maximum aggregate amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (obligations of such Subsidiary Guarantor hereunder without impairing this Agreement or in affecting the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off rights and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member remedies of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Grouphereunder.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. (a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender GroupGuarantors hereby irrevocably and unconditionally guarantees, jointly and severally with the other Guarantors, as a primary obligor and not merely as a surety, to each of the below-defined Holders of Guaranteed Obligations and its successors, transfers and assigns, the full and prompt punctual payment and performance when due (whether at stated maturity, upon acceleration or otherwise) of the Obligations, including any including, without limitation, (i) the principal of and interest therein (including interest as provided in this on each Loan made to the Borrowers pursuant to the Credit Agreement, accruing after (ii) any obligations of the filing Borrowers to reimburse LC Disbursements (“Reimbursement Obligations”), (iii) all obligations of the Company or its Subsidiaries owing to any Lender or any affiliate of any Lender under any Swap Agreement or Banking Services Agreement, (iv) all other amounts payable by the Company or any of its Subsidiaries under the Credit Agreement, any Swap Agreement, any Banking Services Agreement and the other Loan Documents (including, without limitation, attorneys’ fees and expenses) and (v) the punctual and faithful performance, keeping, observance, and fulfillment by the Borrowers of all of the agreements, conditions, covenants, and obligations of the Borrowers contained in the Loan Documents (all of the foregoing being referred to collectively as the “Guaranteed Obligations” and the holders from time to time of the Guaranteed Obligations being referred to collectively as the “Holders of Guaranteed Obligations”); provided, however, that the definition of “Guaranteed Obligations” shall not create any guarantee by any Guarantor of (or grant of security interest by any Guarantor to support, as applicable) any Excluded Swap Obligations of such Guarantor for purposes of determining any obligations of any Guarantor. Upon (x) the failure by the Company or any of its Affiliates, as applicable, to pay punctually any such amount or perform such obligation, and (y) such failure continuing beyond any applicable grace or notice and cure period, each of the Guarantors agrees that it shall forthwith on demand pay such amount or perform such obligation at the place and in the manner specified in the Credit Agreement, any Swap Agreement, any Banking Services Agreement or the relevant Loan Document, as the case may be. Each of the Guarantors hereby agrees that this Guaranty is an absolute, irrevocable, unconditional, present and continuing guaranty of payment and is not a petition initiating guaranty of collection, and is no way conditioned upon any Insolvency Proceedingsattempt to collect from the Borrowers, any other Subsidiary Guarantor or any other Affiliate of the Company or any other action, occurrence or circumstance whatsoever. Notwithstanding any stay, injunction or other prohibition preventing such action against the Borrowers, if for any reason whatsoever the Borrowers shall fail or be unable duly, punctually and fully to perform or pay any Guaranteed Obligation as and when the same shall become due and payable or to perform or comply with any other Guaranteed Obligation, whether or not such interest accrues failure or is recoverable against Borrowers after the filing inability shall constitute an Event of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liableDefault, each Guarantor hereby declares and agrees that this Guaranty shall will forthwith pay or cause to be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, such amounts to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of Administrative Agent for application on any of the Guarantors under this Guaranty or otherwise with respect to the Obligations Guaranteed Obligations, in any action or proceeding brought by the Administrative Agent or any other member lawful money of the Lender Group to collect United States of America, at the place specified in the Credit Agreement, or perform or comply with such Guaranteed Obligations or any portion thereofcause such Guaranteed Obligations to be performed or complied with, or to enforce the obligations of any of the Guarantors under this Guaranty.
together with interest (d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If amounts and to the extent that required under the Credit Agreement) on any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject amount due and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Groupowing.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Credit Agreement (Stepan Co)
Guaranty. (a) Each Guarantor The Guarantors hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, jointly and severally unconditionally and irrevocably guarantee the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedingswhen due, whether at stated maturity, by acceleration or not otherwise, of, and the performance of, (a) the Obligations (excluding obligations arising under any Swap Contract to which an Affiliate of any Lender is a party that was entered into prior to the time such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceedingLender became a Lender), plus whether now or hereafter existing and whether for principal, interest, fees, expenses or otherwise, (b) any and all reasonable attorneys’ out-of-pocket expenses (including, without limitation, reasonable expenses and reasonable counsel fees and expenses of the Administrative Agent and the Lenders) incurred by any of the Guarantied Parties in enforcing any rights under this Guaranty and (c) all present and future amounts that would become due but for the operation of any provision of Debtor Relief Laws, and all present and future accrued and unpaid interest, including, without limitation, all post-petition interest if the obligations represented by this Guaranty are collected by lawBorrower or any Guarantor voluntarily or involuntarily becomes subject to any Debtor Relief Laws (the items set forth in clauses (a), through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutelyimmediately above being herein referred to as the "Guarantied Obligations"). Upon failure of the Borrower to pay any of the Guarantied Obligations when due after the giving by the Administrative Agent and/or the Lenders of any notice and the expiration of any applicable cure period in each case provided for in the Credit Agreement and other Loan Documents (whether at stated maturity, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, by acceleration or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)otherwise), set-offthe Guarantors hereby further jointly and severally agree to promptly pay the same after the Guarantors' receipt of notice from the Administrative Agent of the Borrower's failure to pay the same, counterclaim without any other demand or cross-claim notice whatsoever, including without limitation, any notice having been given to any Guarantor of any nature whatsoever with respect to either the acceptance by the Guarantied Parties of this Guaranty or the obligations of the Guarantors under this Guaranty creation or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations incurrence of any of the Guarantors under this Obligations. This Guaranty or otherwise with respect is an absolute guaranty of payment and performance of the Guarantied Obligations and not a guaranty of collection, meaning that it is not necessary for the Guarantied Parties, in order to the Obligations in any action or proceeding brought enforce payment by the Administrative Agent Guarantors, first or contemporaneously to accelerate payment of any other member of the Lender Group Guarantied Obligations, to collect the Obligations institute suit or exhaust any portion thereofrights against any Loan Party, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, rights against any Collateral. Notwithstanding anything herein or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and Document to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guarantycontrary, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state corporate law, or Federal any state or federal bankruptcy, insolvency, reorganizationreorganization or other law affecting the rights of creditors generally, moratoriumif, as a result of applicable law relating to fraudulent conveyance or fraudulent transfer, including Section 548 of Bankruptcy Code or any applicable provisions of comparable state law (collectively, "Fraudulent Transfer Laws"), the obligations of any Guarantor under this Section 1 would otherwise, after giving effect to (a) all other similar laws relating liabilities of such Guarantor, contingent or otherwise, that are relevant under such Fraudulent Transfer Laws (specifically excluding, however, any liabilities of such Guarantor in respect of intercompany Indebtedness to the insolvency Borrower to the extent that such Indebtedness would be discharged in an amount equal to the amount paid by such Guarantor hereunder) and (b) to the value as assets of debtorssuch Guarantor (as determined under the applicable provisions of such Fraudulent Transfer Laws) of any rights of subrogation, contribution, reimbursement, indemnity or similar rights held by such Guarantor pursuant to (i) applicable requirements of Law, (ii) Section 10 hereof or (iii) any other contractual obligations providing for an equitable allocation among such Guarantor and other Subsidiaries or Affiliates of the Borrower of obligations arising under this Guaranty or other guaranties of the Obligations by such parties, be held or determined to be void, invalid or unenforceable, or subordinated to the claims of any other creditors, on account of the amount of its liability under this Section 1, then the amount of such liability shall, without any further action by such Guarantor, any Lender, the Administrative Agent or any other Person, be automatically limited and reduced to the highest amount that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
Appears in 1 contract
Sources: Guaranty (Nci Building Systems Inc)
Guaranty. (a) Each Guarantor The Guarantors hereby guarantees jointly and severally, irrevocably and unconditionally, guarantee the punctual payment when due, whether at stated maturity, by acceleration or otherwise, of all Loans and all other Obligations owing by Intermet to the Lenders or the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of under the Obligations or any part Credit Agreement, the Notes and the other Credit Documents, including, without limitation, all renewals, extensions, modifications and refinancings thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereofowing, whether for principal, interest, fees, expenses or otherwise, and any and all reasonable out-of-pocket expenses (including reasonable attorneys' fees actually incurred) and expenses incurred by the Administrative Agent in enforcing any rights under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations (collectively, the "Guaranteed Obligations) and "), including without limitation, all interest which, but for the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutelyfiling of a petition in bankruptcy with respect to Intermet, unconditionally and irrevocably waives would accrue on any principal portion of the Guaranteed Obligations. Any and all right to assert payments by the Guarantors hereunder shall be made free and clear of and without deduction for any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim counterclaim, or cross-claim of withholding so that, in each case, each Guaranteed Party will receive, after giving effect to any nature whatsoever with respect to this Guaranty or Taxes (as such term is defined in the obligations Credit Agreement, but excluding Taxes imposed on overall net income of the Guarantors under this Guaranty or Guaranteed Party to the obligations of any other Person or party (including Borrowers) relating same extent as excluded pursuant to this Guaranty or the obligations of any of Credit Agreement), the Guarantors under this Guaranty or full amount that it would otherwise be entitled to receive with respect to the Guaranteed Obligations (but without duplication of amounts for Taxes already included in any action or proceeding brought by the Administrative Agent or any other member Guaranteed Obligations). The Guarantors acknowledge and agree that this is a guarantee of payment when due, and not of collection, and that this Guaranty may be enforced up to the full amount of the Lender Group to collect the Guaranteed Obligations or any portion thereofwithout proceeding against Intermet, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of against any security for the Obligations and accept Guaranteed Obligations, against any other Guarantor or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to guaranty covering any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupGuaranteed Obligations.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. (a) Each Guarantor hereby guarantees In recognition of the direct and indirect benefits to be received by Guarantors from the proceeds of the Term Loans by virtue of the financial accommodations to be made to the Administrative Borrower, each of the Guarantors, jointly and severally, hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as a surety the full and prompt payment when due, whether upon maturity, acceleration, or otherwise, of all of the Guarantied Obligations. If any or all of the Obligations constituting Guarantied Obligations becomes due and payable, each of the Guarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to pay such indebtedness to Agent, for the benefit of the Lender GroupSecured Parties, the full together with any and prompt payment of the Obligationsall reasonable, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and documented out-of-pocket expenses if the obligations represented that may be incurred by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor Agent or any other Person shall become Secured Party in any other way responsible to the Lender Groupdemanding, enforcing, or collecting any of them, the Guarantied Obligations (including the enforcement of any collateral for or in respect of the such Guarantied Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, collateral for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty). If claim is ever made upon Agent or any other Secured Party for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Guarantied Obligations and any of Agent or any other Secured Party repays all or part of said amount by reason of (i) any judgment, decree, or order of any court or administrative body having jurisdiction over such payee or any of its property, or (ii) any reasonable settlement or compromise of any such claim effected by such payee with any such claimant (including any Borrower or any Guarantor), then and in each such event, each of the Guarantors agrees that any such judgment, decree, order, settlement, or compromise shall be binding upon the Guarantors, notwithstanding any revocation (or purported revocation) of this Guaranty or other instrument evidencing any liability of any Grantor, and the Guarantors shall be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) [Reserved].
(c) The liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other guaranty of the Guarantied Obligations, whether executed by any other Guarantor or by any other Person, and the liability of each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking, (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Grantor, (iii) any payment made to Agent or any other Secured Party on account of the Guarantied Obligations which Agent or such other Secured Party repays to any Grantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, or (iv) any action or inaction by Agent or any other Secured Party, or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Guarantied Obligations or of any security therefor.
(d) This Guaranty includes all present and future Guarantied Obligations including any transactions continuing, compromising, extending, increasing, modifying, releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Agent, (ii) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any Secured Party in existence on the date of such revocation, (iv) no payment by any Guarantor, any Borrower, or from any other source, prior to the date of Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by a Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Agent (for the benefit of the Secured Parties) and its successors, transferees, or assigns.
(e) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of any other Guarantor or Grantor or any other Person and a separate action or party actions may be brought and prosecuted against one or more of the Guarantors whether or not action is brought against any other Guarantor or Grantor or any other Person and whether or not any other Guarantor or Grantor or any other Person be joined in any such action or actions. Each of the Guarantors waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Grantor or other circumstance which operates to toll any statute of limitations as to any Grantor shall operate to toll the statute of limitations as to each of the Guarantors.
(f) Each of the Guarantors authorizes Agent and the other Secured Parties, without notice or demand, and without affecting or impairing its liability hereunder, from time to time to:
(i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Guarantied Obligations (including Borrowersany increase or decrease in the principal amount thereof or the rate of interest or fees thereon); or (B) relating to any security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Guarantied Obligations as so changed, extended, renewed, or altered;
(ii) take and hold security for the payment of the Guarantied Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Obligations or any of the Guarantied Obligations (including any of the obligations of all or any of the Guarantors under this Guaranty Guaranty) incurred directly or otherwise with indirectly in respect to the Obligations in any action thereof or proceeding brought by the Administrative Agent hereof, or any offset on account thereof;
(iii) exercise or refrain from exercising any rights against any Grantor;
(iv) release or substitute any one or more endorsers, guarantors, any Grantor, or other member obligors;
(v) settle or compromise any of the Lender Group to collect the Obligations Guarantied Obligations, any security therefor, or any portion thereof, or to enforce the obligations liability (including any of those of any of the Guarantors under this Guaranty.) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Grantor to its creditors;
(dvi) The Lender Groupapply any sums by whomever paid or however realized to any liability or liabilities of any Grantor to Agent or any other Secured Party regardless of what liability or liabilities of such Grantor remain unpaid;
(vii) consent to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Document, or any of them, may from time the instruments or agreements referred to time, without exonerating herein or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem propertherein, or (ii) releaseotherwise amend, dischargemodify, abandon or otherwise deal with or fail to deal with supplement this Agreement, any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Groupother Loan Document, or any of themsuch other instruments or agreements; or
(viii) take any other action that could, or (iii) amend, modify, extend, accelerate or waive in any manner any under otherwise applicable principles of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantorlaw, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related rise to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety one or guarantormore of the Guarantors from all or part of its liabilities under this Guaranty.
(g) It is not necessary for Agent or any other Secured Party to inquire into the capacity or powers of any of the Guarantors or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Guarantied Obligations made or created in reliance upon the professed exercise of such powers shall be Guaranteed hereunder.
(h) Each Guarantor jointly and severally guarantees that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation, or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of any Secured Party with respect thereto. The obligations of each Guarantor under this Guaranty are independent of the Guarantied Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defense it may now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(ii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guarantied Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any increase in the Guarantied Obligations resulting from the extension of additional credit;
(iii) any taking, exchange, release, or non-perfection of any Lien in and to any Collateral, or any taking, release, amendment, waiver of, or consent to departure from any other guaranty, for all or any of the Guarantied Obligations;
(iv) the existence of any claim, set-off, defense, or other right that any Guarantor may have at any time against any Person, including Agent or any other Secured Party;
(v) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Guarantied Obligations or any security therefor (other than to the extent arising from payment of the Guarantied Obligations, to the extent of such payment);
(vi) any right or defense arising by reason of any waiverclaim or defense based upon an election of remedies by any Secured Party including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, omission reimbursement, contribution, or indemnity of such Guarantor against any other Grantor or any guarantors or sureties;
(vii) any change, restructuring, or termination of the Lender Groupcorporate, limited liability company, or partnership structure or existence of any of themGrantor; or
(viii) any other circumstance that might otherwise constitute a defense available to, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk a discharge of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, Grantor or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any surety (other than payment of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Guarantied Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Grouppayment).
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. (a) Each Therefore, for value received, and in consideration of any loan, advance or financial accommodation of any kind whatsoever heretofore, now or hereafter made, given or granted to the Borrowers by either Agent or any Lender, each Guarantor hereby unconditionally guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment when due, whether at maturity or earlier, by reason of acceleration or otherwise, and at all times thereafter, of all of the Obligations. Without limiting the foregoing, including any interest therein the Obligations guaranteed hereby include all fees, costs and expenses (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented expenses) incurred by either Agent or any Lender in attempting to collect any amount due under this Guaranty are collected by lawor in prosecuting any action against any Borrower, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor Guarantor or any other Person shall become in guarantor of all or part of the Obligations and all interest, fees, costs and expenses owing to either Agent or any Lender after the commencement of bankruptcy proceedings with respect to any Borrower, any Guarantor or any other way responsible to guarantor of all or part of the Lender GroupObligations (whether or not the same may be collected while such proceedings are pending). Each Guarantor hereby agrees that this Guaranty is a present and continuing guaranty of payment and not of collection and that its obligations hereunder shall be unconditional, irrespective of (i) the validity or any of them, for or in respect enforceability of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty Financing Documents, (ii) the waiver or otherwise consent by either Agent or any Lender with respect to any provision of any Financing Document, or any amendment, modification or other change with respect to any Financing Document, (iii) any merger or consolidation of any Borrower, any Guarantor or any other guarantor of all or part of the Obligations into or with any Person or any change in the ownership of the equity of any Borrower, any Guarantor or any other guarantor of all or part of the Obligations, (iv) any dissolution of any Guarantor or any insolvency, bankruptcy, liquidation, reorganization or similar proceedings with respect to any Borrower, any Guarantor or any other guarantor of all or part of the Obligations, (v) any action or proceeding brought by inaction on the Administrative part of either Agent or any other member Lender, including without limitation the absence of the Lender Group any attempt to collect the Obligations from any Borrower, any Guarantor or any other guarantor of all or part of the Obligations or other action to enforce the same or the failure by either Agent to take any steps to perfect and maintain the Collateral Agent’s Lien on, or to preserve its rights to, any security or collateral for the Obligations, (vi) either Agent’s election, in any proceeding instituted under Chapter 11 of Title 11 of the United States Code (11 U.S.C. Section 101 et seq.), as amended (the “Bankruptcy Code”) of the application of Section 1111(b)(2) of the Bankruptcy Code, (vii) any borrowing or grant of a Lien by any Borrower, any Guarantor or any other guarantor of all or part of the Obligations, as debtor-in-possession, under Section 364 of the Bankruptcy Code, (viii) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion thereofof either Agent’s or any Lender’s claims for repayment of the Obligations, (ix) either Agent’s or any Lender’s inability to enforce the obligations Obligations of any Borrower as a result of the Guarantors automatic stay provisions under this Guaranty.
Section 362 of the Bankruptcy Code, (dx) The Lender Group, the discharge or release by either Agent and/or Lenders of any of them, may from time to time, without exonerating or releasing any Guarantor in any way Guarantor’s obligations and liabilities under this Guaranty, (ixi) take such further the discharge or release by either Agent and/or Lenders of any other security or securities for the Obligations or guarantor’s obligations and liabilities under any part thereof as they may deem proper, guaranty or (iixii) release, discharge, abandon or any other circumstance which might otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed constitute a legal or equitable discharge or defense of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, Guarantor or any other guarantor of all or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any part of the Obligations (or in the case other than a defense of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off payment and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment performance in full in cash of the Obligations to the satisfaction of the Lender Groupall Obligations.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Guaranty (Comsys It Partners Inc)
Guaranty. (a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, Guarantors (including both the full New Guarantors and prompt the Original Guarantors) unconditionally and irrevocably guarantees the due and punctual payment and performance of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) . Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to further agrees that the Obligations in any action may be extended or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be releasedrenewed, in whole or in part, without notice or further assent from it, and it will remain bound upon this Guaranty notwithstanding any extension or renewal of any Obligation.
(b) Each of the Guarantors waives presentation to, demand for payment from and protest to the Borrower or any other Guarantor of any of the Obligations, and also waives notice of protest for nonpayment. The Obligations of the Guarantors hereunder shall not be affected by (i) the failure of the Agent or any action Bank to assert any claim or thing which might, but for this paragraph demand or to enforce any right or remedy against the Borrower or any other Guarantor under the provisions of this Guaranty, be deemed a legal Agreement or equitable discharge of a surety any other agreement or guarantor, otherwise; (ii) any extension or by reason renewal of any provision hereof or thereof; (iii) any rescission, waiver, omission compromise, acceleration, amendment or modification of any of the Lender Groupterms or provisions of any Loan Document or any other agreement; (iv) the release, exchange, waiver or foreclosure of any security held by the Agent or any Bank for the Obligations or any of them; (v) the failure of the Agent or any Bank to exercise any right or remedy against any other guarantor of the Obligations; or (vi) the release or substitution of any Guarantor.
(c) Each of the Guarantors further agrees that this Guaranty constitutes a guaranty of performance and of payment when due and not just of collection, and waives any right to require that any resort be had by the Agent or any Bank to any security held for payment of the Obligations or to any balance of any deposit, account or credit on the books of a Bank in favor of the Borrower or any other Guarantor, or their failure to proceed promptly any other Person.
(d) Each of the Guarantors hereby expressly assumes all responsibilities to remain informed of the financial condition of the Borrower and each other Guarantor and any circumstances affecting the ability of the Borrower to perform under this Agreement. Each Guarantor acknowledges that it will receive direct and indirect benefits from the Loans contemplated by this Agreement and that the Banks required as a condition to entering into this Agreement, and in order to secure the prompt and complete payment, observance and performance of the Obligations, that each Guarantor shall make this Guaranty.
(e) Each of the Guarantors' guaranty shall not be affected by the genuineness, validity, regularity or otherwiseenforceability of the Obligations, the Notes or any other instrument evidencing any Obligations, or by reason the existence, validity, enforceability, perfection, or extent of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor collateral therefor or by reason any other circumstance relating to the Obligations which might otherwise constitute a defense to this Guaranty. The Agent makes no representation or warranty in respect of any further dealings between any Borrower, on such circumstances and has no duty or responsibility whatsoever to the one hand, and any member Guarantors in respect of the Lender Group, on the other hand, or any other guarantor or surety, management and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any maintenance of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Groupcollateral.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. (a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, Guarantors unconditionally and irrevocably guarantees the full due and prompt punctual payment and performance by the Borrower of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) . Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to further agrees that the Obligations in any action may be extended or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be releasedrenewed, in whole or in part, without notice to or further assent from it, and it will remain bound upon this guaranty notwithstanding any extension or renewal of any of the Obligations. The Obligations of the Guarantors shall be joint and several.
(b) Each of the Guarantors waives presentation to, demand for payment from and protest to the Borrower or any other Guarantor, and also waives notice of protest for nonpayment. The Obligations of the Guarantors hereunder shall not be affected by (i) the failure of the Agent or a Bank to assert any action claim or thing which might, but for this paragraph demand or to enforce any right or remedy against the Borrower or any other Guarantor under the provisions of this Guaranty, be deemed a legal Agreement or equitable discharge of a surety any other Loan Document or guarantor, otherwise; (ii) any extension or by reason renewal of any provision hereof or thereof; (iii) any rescission, waiver, omission compromise, acceleration, amendment or modification of any of the Lender Groupterms or provisions of any of the Loan Documents; (iv) the release, exchange, waiver or foreclosure of any security held by the Agent for the Obligations or any of them; (v) the failure of the Agent or a Bank to exercise any right or remedy against any other Guarantor; or (vi) the release or substitution of any Guarantor or any other Guarantor.
(c) Each of the Guarantors further agrees that this guaranty constitutes a guaranty of performance and of payment when due and not just of collection, and waives any right to require that any resort be had by the Agent or a Bank to any security held for payment of the Obligations or to any balance of any deposit, account or credit on the books of the Agent or a Bank in favor of the Borrower or any other Guarantor, or their to any other Person.
(d) Each of the Guarantors hereby waives any defense that it might have based on a failure to proceed promptly remain informed of the financial condition of the Borrower and of any other Guarantor and any circumstances affecting the ability of the Borrower to perform under this Agreement.
(e) Each Guarantor's guaranty shall not be affected by the genuineness, validity, regularity or otherwiseenforceability of the Obligations or any other instrument evidencing any Obligations, or by reason the existence, validity, enforceability, perfection, or extent of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor collateral therefor or by reason of any further dealings between any Borrower, on other circumstance relating to the one hand, and any member Obligations which might otherwise constitute a defense to this Guaranty. Neither of the Lender GroupAgent, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, nor any of the foregoing acts, omissions, things, agreements Banks makes any representation or waiverswarranty in respect to any such circumstances or shall have any duty or responsibility whatsoever to any Guarantor in respect of the management and maintenance of the Obligations.
(f) The Lender GroupSubject to the provisions of Section 7.01, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be the Obligations becoming due and payable hereunder (by any Guarantoracceleration or otherwise), if Borrowers the Banks shall not have timely paid any be entitled to immediate payment of such xliii Obligations by the Guarantors upon written demand by the Agent, without further application to or order of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupBankruptcy Court.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Family Golf Centers Inc)
Guaranty. (a) Each Loan Guarantor and any of its successors or assigns (other than those that have delivered a separate Loan Guaranty) hereby guarantees agrees that it is jointly and severally liable for, and, as primary obligor and not merely as surety, absolutely and unconditionally guarantees, to the Administrative Agent, for extent permissible under the benefit laws of the Lender Groupcountry in which such Loan Guarantor is located or organized, to the Lenders, the full Agents and the Issuing Banks (collectively, the “Guaranteed Parties”) the prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of the Secured Obligations (excluding with respect to any Loan Guarantor, any Excluded Swap Obligations of such Loan Guarantor) and all costs and expenses including, without limitation, all court costs and attorneys’ and paralegals’ fees (including allocated costs of in-house counsel and paralegals) and expenses paid or incurred by the Agents, the Issuing Banks and the Lenders in endeavoring to collect all or any part of the Secured Obligations from, or in prosecuting any action against, any Borrower, any other Loan Guarantor or any other guarantor of all or any part of the Secured Obligations (such costs and expenses, together with the Secured Obligations, including collectively the “Guaranteed Obligations”). Each Loan Guarantor further agrees that the Guaranteed Obligations may be extended or renewed in whole or in part without notice to or further assent from it, and that it remains bound upon its guarantee notwithstanding any interest therein (including interest as provided in such extension or renewal. All terms of this Agreement, accruing after the filing Loan Guaranty apply to and may be enforced by or on behalf of a petition initiating any Insolvency Proceedings, whether domestic or not such interest accrues foreign branch or is recoverable against Borrowers after the filing Affiliate of such petition for purposes any Lender that extended any portion of the Bankruptcy Code Guaranteed Obligations. Notwithstanding anything in the foregoing to the contrary, in no event shall the Guaranteed Obligations guaranteed hereunder by any UK Loan Party or is an allowed claim in such proceeding)Canadian Loan Party include the Secured Obligations of any US Loan Party, plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorneyNon-atLoan Party Banking Services Obligations or the Non-law, or under advice therefromLoan Party Secured Swap Obligations.
(b) Regardless of whether If any proposed guarantor payment by a Loan Guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or discharge given by a Guaranteed Party (whether in respect of the Obligations obligations of any Loan Guarantor or any part thereof, and regardless security for those obligations or otherwise) is avoided or reduced as a result of whether or not any Person now or hereafter responsible to the Lender Group, insolvency or any similar event: (a) the liability of themeach Loan Guarantor shall continue as if the payment, for the Obligations discharge, avoidance or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, reduction had not occurred; and (b) each Guarantor hereby declares and agrees that this Guaranty Guaranteed Party shall be a joint and several obligationentitled to recover the value or amount of that security or payment from each Loan Guarantor, shall be a continuing guaranty and shall be operative and binding until as if the Obligations shall have been indefeasibly paid in full in cash (payment, discharge, avoidance or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminatedreduction had not occurred.
(c) Each To the fullest extent permitted by applicable law, the obligations of each Loan Guarantor absolutelyunder this Article X will not be affected by an act, unconditionally and irrevocably waives omission, matter or thing which, but for this Article X, would reduce, release or prejudice any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunderunder 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 a defense that such Guarantor’s liability is limited as provided in Section 3.1(g))composition with, set-off, counterclaim any Loan Guarantor or cross-claim of any nature whatsoever with respect to this Guaranty or other person; (b) the obligations of the Guarantors under this Guaranty or the obligations release of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent Loan Guarantor or any other member person under the terms of any composition or arrangement with any creditor of any UK Group Member; (c) the Lender Group taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to collect the Obligations perfect, take up or enforce, any rights against, or security over assets of, any Loan Guarantor or other person or any portion thereof, non-presentation or to enforce the obligations non-observance of any formality or other requirement in respect of any instrument or any failure to realize the Guarantors full value of any security; (d) any incapacity or lack of power, authority or legal personality of or dissolution or change in the members or status of an Loan Guarantor or any other person; (e) any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case, however fundamental and of whatsoever nature) or replacement of a Loan Document or any other document or security; (f) any unenforceability, illegality or invalidity of any obligation of any person under this Guarantyany Loan Document or any other document or security; or (g) any insolvency or similar proceedings.
(d) The Lender GroupWithout prejudice to the generality of the above, each Loan Guarantor expressly confirms, as permissible under applicable law, that it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of them, may the Loan Documents and/or any amount made available under any of the Loan Documents for the purposes of or in connection with any of the following: acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing or replacing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal costs and/or expenses associated with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Loan Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have of first requiring any Guaranteed Party (or may exist based upon, and shall be deemed any trustee or agent on its behalf) to have consented 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 foregoing acts, omissions, things, agreements or waiverscontrary.
(f) The Lender Group, or This Loan Guaranty is in addition to and is not in any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder way prejudiced by any Guarantor, if Borrowers shall not have timely paid other guarantee or security now or subsequently held by any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupGuaranteed Party.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. A. From the Effective Date, Guarantor continually, absolutely, irrevocably, and unconditionally guarantees the full, faithful, and timely payment and performance by Tenant of all of Tenant’s obligations (aincluding the timely payment of all amounts that Tenant may at any time owe) Each under or arising out of the Lease, or any extensions, renewals, or modifications of the Lease, including payment and performance of all obligations of Tenant which may survive the expiration or termination of the Lease. The provisions contained in this Section 1 are collectively referred to herein as the “Guaranty”.
B. Guarantor authorizes Landlord, without notice or demand and without affecting Guarantor’s liability under the Guaranty, to:
(1) consent or agree to any extensions, accelerations, or other changes in the time for any payment provided for in the Lease, or consent or agree to any other alteration of any covenant, term, or condition of the Lease in any respect, and to consent to any assignment, subletting, or reassignment of the Lease;
(2) take and hold security for any payment provided for in the Lease or for the performance of any covenant, term, or condition of the Lease, or exchange, waive, or release any security and Guarantor hereby guarantees waives any right to require Landlord to proceed against or exhaust any security including any rights under California Civil Code Sections 2899 and 3433;
(3) apply any security and direct the Administrative Agentorder or manner of its sale as Landlord may determine. Notwithstanding any termination, renewal, extension or holding over of the Lease, or any demand for performance, or other enforcement of Guarantors obligations under the Guaranty, the Guaranty shall continue until all of the covenants and obligations on the part of Tenant to be performed have been fully and completely performed by Tenant, and Guarantor shall not be released of any obligation or liability under the Guaranty so long as there is any claim against Tenant arising out of the Lease that has not been satisfied or performed by Tenant or waived in writing for the express benefit of Guarantor; and
(4) renew, modify, amend or extend the Lender GroupLease, The Guarantor waives its rights under California Civil Code Section 2819.
C. The obligations of Guarantor under the full and prompt payment Guaranty are independent of the Obligationsobligations of Tenant. Landlord may, including any interest therein (including interest as provided at Landlord’s option, proceed immediately and directly against Guarantor, jointly or severally, in this Agreement, accruing after order to enforce the filing performance of a petition initiating any Insolvency Proceedingsthe obligations of Tenant under the Lease. A separate action may be brought and prosecuted against Guarantor, whether or not such interest accrues any action is first or is recoverable subsequently brought against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-lawTenant, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not Tenant is joined in any Person now or hereafter responsible to the Lender Groupaction, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to and Guarantor may be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations joined in any action or proceeding brought commenced by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereofLandlord against Tenant arising out of, in connection with, or to enforce based upon the obligations Lease. The liability of any of Guarantor under the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole Guaranty shall be primary and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be releasednecessary for Landlord, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure order to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the enforce its rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based uponupon the default by Tenant, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or first give Guarantor notice of any kind upon Tenant’s default or to any Guarantor, at any time institute suit or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (pursue or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have exhaust its legal remedies against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupTenant.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Sublease (Guidewire Software, Inc.)
Guaranty. (a) Each Loan Guarantor that is a U.S. Loan Party (other than those that have delivered a separate Obligation Guaranty) hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be it is jointly and severally liable for, and, as a joint primary obligor and several obligationnot merely as surety, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any guarantees to the Secured Parties, the prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of the Secured Obligations and all right to assert any defense (other than the defense of payment in cash in fullcosts and expenses, to the extent of its obligations hereunderincluding, without limitation, all court costs and reasonable attorneys' and paralegals' fees and expenses paid or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought incurred by the Administrative Agent or any other member of Agent, the Lender Group Issuing Bank and the Lenders in endeavoring to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities Secured Obligations from, or in prosecuting any action against, any Borrower, any Loan Guarantor or any other guarantor of all or any part of the Secured Obligations (such costs and expenses, together with the Secured Obligations, collectively the "Guaranteed Obligations"; provided, however, that the definition of "Guaranteed Obligations" shall not create any guarantee by any Loan Guarantor of (or grant of security interest by any Loan Guarantor to support, as applicable) any Excluded Swap Obligations of such Loan Guarantor for purposes of determining any obligations of such any Loan Guarantor) and (b) each Loan Guarantor pursuant to this that is not a U.S. Loan Party (other than those that have delivered a separate Obligation Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor ) hereby agrees that until each it is jointly and every one of severally liable for, and, as a primary obligor and not merely as surety, absolutely, unconditionally and irrevocably guarantees to the covenants and agreements of this Guaranty is fully performedSecured Parties, and without possibility of recoursethe prompt payment when due, whether by operation of law at stated maturity, upon acceleration or otherwise, and at all times thereafter, of the Guaranteed Obligations, but only to the extent such Guarantor’s undertakings hereunder shall not Guaranteed Obligations are attributable to a Foreign Subsidiary of the Company. Each Loan Guarantor further agrees that the Guaranteed Obligations may be released, extended or renewed in whole or in partpart without notice to or further assent from it, by and that it remains bound upon its guarantee notwithstanding any action such extension or thing which might, but for this paragraph renewal. All terms of this Guaranty, Loan Guaranty apply to and may be deemed a legal enforced by or equitable discharge of a surety or guarantor, or by reason on behalf of any waiver, omission of the Lender Group, domestic or any of them, foreign branch or their failure to proceed promptly or otherwise, or by reason Affiliate of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to that extended any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupGuaranteed Obligations.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. (a) Each Guarantor hereby guarantees Grantor hereby, jointly and severally, unconditionally and irrevocably, guaranties to the Administrative Secured Parties and their respective successors, indorsees, transferees and assigns, and to the Collateral Agent, for the benefit of the Lender GroupSecured Parties and their respective successors, indorsees, transferees and assigns, the full prompt and prompt complete payment and performance by each Debtor when due (whether at the stated maturity, by acceleration or otherwise) of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether Secured Obligations to be paid or not performed by such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromDebtor.
(b) Regardless of whether any proposed guarantor Anything herein or any other Person shall become in any other way responsible PA Financing Transaction Document to the Lender Groupcontrary notwithstanding, or any the maximum liability of themeach Grantor hereunder and under the other PA Financing Transaction Documents shall in no event exceed the amount which can be validly guaranteed by such Grantor, for or in respect of the Obligations or any part thereofif any, under applicable Debtor federal and regardless of whether or not any Person now or hereafter responsible state laws relating to the Lender Group, insolvency of debtors (after giving effect to the right of contribution established in Section 2.2). Nothing in this Section 2.1(b) limits or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminatedqualifies Section 3.1 hereof.
(c) Each Guarantor absolutely, unconditionally Grantor agrees that the Secured Obligations may at any time and irrevocably waives any from time to time exceed the amount of the liability of such Grantor hereunder without impairing the guaranty contained in this Section 2.1 or affecting the rights and all right to assert any defense (other than remedies of the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect Secured Parties pursuant to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this GuarantyAgreement.
(d) The Lender Groupguaranty contained in this Section 2.1 shall remain in full force and effect until the Secured Obligations have been paid in full, the Commitments have been terminated or any of themhave expired and this Agreement has been terminated, may notwithstanding that from time to time, without exonerating or releasing time prior thereto any Guarantor in Debtor may be free from any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedientSecured Obligations.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, No payment made by any action or thing which mightDebtor, but for this paragraph of this Guarantyany Grantor, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or suretyany other Person or received or collected by the Secured Parties from any Debtor, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunderGrantor, any other guarantor or any right of counterclaim or offset other Person by virtue of any nature action or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, proceeding or any of them, may, without demand set-off or notice of any kind upon appropriation or to any Guarantor, application at any time or from time to time when any amount in reduction of or in payment of the Secured Obligations shall be due and payable hereunder by deemed to modify, reduce, release or otherwise affect the liability of any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal Grantor pursuant to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, which shall remain, notwithstanding any depositssuch payment, property, balances, credit accounts or moneys of any Guarantor in liable for the possession of any member of the Lender Group or under their respective control for any purpose. If and remaining Secured Obligations up to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person maximum liability of such Grantor pursuant to or this Agreement until the Secured Obligations have been paid in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess offull, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering Commitments have been terminated or have expired and this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorsAgreement has terminated.
Appears in 1 contract
Sources: Security Agreement (First Citizens Bancshares Inc /De/)
Guaranty. (a) Each Loan Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for its successors or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense assigns (other than the defense of payment in cash in fullthose that have delivered a separate Loan Guaranty) hereby agrees that it is jointly and severally (solidariamente, with respect to each Puerto Rican Loan Party) liable for, and, as primary obligor and not merely as surety, absolutely and unconditionally guarantees, to the extent permissible under the laws of its obligations hereunderthe country in which such Loan Guarantor is located or organized, to the Lenders, the Agents and the Issuing Banks (collectively, the “Guaranteed Parties”) the prompt payment when due, whether at stated maturity, upon acceleration or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g))otherwise, set-offand at all times thereafter, counterclaim or cross-claim of any nature whatsoever the Secured Obligations (excluding with respect to this Guaranty or the obligations any Loan Guarantor, any Excluded Swap Obligations of the Guarantors under this Guaranty or the obligations of any other Person or party such Loan Guarantor) and all costs and expenses including, without limitation, all court costs and attorneys’ and paralegals’ fees (including Borrowersallocated costs of in-house counsel and paralegals) relating to this Guaranty and expenses paid or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought incurred by the Administrative Agent or any other member of Agents, the Lender Group Issuing Banks and the Lenders in endeavoring to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations Secured Obligations from, or in prosecuting any action against, any Borrower, any other Loan Guarantor or any other guarantor of such Guarantor pursuant to this Guaranty; it being the purpose and intent all or any part of the Guarantors Secured Obligations (such costs and expenses, together with the Lender Group Secured Obligations, collectively the “Guaranteed Obligations”). Each Loan Guarantor further agrees that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law Guaranteed Obligations may be extended or otherwise, such Guarantor’s undertakings hereunder shall not be released, renewed in whole or in partpart without notice to or further assent from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal. All terms of this Loan Guaranty apply to and may be enforced by or on behalf of any action domestic or foreign branch or Affiliate of any Lender that extended any portion of the Guaranteed Obligations. Notwithstanding anything in the foregoing to the contrary, in no event shall the Guaranteed Obligations of any European Loan Party include the Obligations of the US Loan Parties. If any payment by a Loan Guarantor or any discharge given by a Guaranteed Party (whether in respect of 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 liability of each Loan Guarantor shall continue as if the payment, discharge, avoidance or reduction had not occurred; and (b) each Guaranteed Party shall be entitled to recover the value or amount of that security or payment from each Loan Guarantor, as if the payment, discharge, avoidance or reduction had not occurred. The obligations of each Loan Guarantor under this Article X will not be affected by an act, omission, matter or thing which mightwhich, but for this paragraph of this GuarantyArticle X, be deemed a legal would reduce, release or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or prejudice any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, its obligations under this Article X (without limitation and whether or not such action known to it or failure to act varies any Guaranteed Party) including: (a) any time, waiver or increases the risk ofconsent granted to, or affects the rights or remedies ofcomposition with, such any Loan Guarantor or by reason other person; (b) the release of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, Loan Guarantor or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset person under the terms of any nature composition or description which it may have or may exist based upon, and shall be deemed to have consented to, arrangement with any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession creditor of any member of the Lender Group European Group; (c) the taking, variation, compromise, exchange, renewal or release of, or refusal or neglect to perfect, take up or enforce, any rights against, or security over assets of, any Loan Guarantor or other person or any non-presentation or non-observance of any formality or other requirement in respect of any instrument or any failure to 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 their respective control any Loan Document or any other document or security; or (g) any insolvency or similar proceedings. Without prejudice to the generality of the above, each Loan Guarantor expressly confirms, as permissible under applicable law, that it intends that this guarantee shall extend from time to time to any (however fundamental) variation, increase, extension or addition of or to any of the Loan Documents and/or any amount made available under any of the Loan Documents for the purposes of or in connection with any purposeof the following: acquisitions of any nature; increasing working capital; enabling investor distributions to be made; carrying out restructurings; refinancing existing facilities; refinancing any other indebtedness; making facilities available to new borrowers; any other variation or extension of the purposes for which any such facility or amount might be made available from time to time; and any fees, costs and/or expenses associated with any of the foregoing. If Each Loan Guarantor waives any right it may have of first requiring any Guaranteed Party (or any trustee or agent on its behalf) to proceed against or enforce any other rights or security or claim payment from any person before claiming from that Loan Guarantor under this Article X. This waiver applies irrespective of any law or any provision of a Loan Document to the contrary. This guarantee is in addition to and is not in any way prejudiced by any other guarantee or security now or subsequently held by any Guaranteed Party. This guarantee does not apply to any liability to the extent that any Guarantor makes any payment to it would result in this guarantee constituting unlawful financial assistance within the Administrative Agent meaning of Section 678 of the UK Companies ▇▇▇ ▇▇▇▇, or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject equivalent and subordinate to applicable provisions under the prior payment in full laws of the Obligations to the satisfaction jurisdiction of incorporation of the Lender Grouprelevant Loan Guarantor.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Credit Agreement (Office Depot Inc)
Guaranty. (a) Each Guarantor hereby guarantees Subject to the provisions of Section 8, each of the Guarantors hereby, jointly and severally, unconditionally and irrevocably, guarantees, as primary obligor and not merely as surety, to the Administrative Agent, as agent for the benefit of the Lender GroupGuaranteed Parties, the full punctual and prompt complete payment and performance when due (whether at the stated maturity, by acceleration or otherwise) of each Obligation. If a Borrower fails to pay or perform any Obligation when due, each Guarantor agrees that it will forthwith on demand pay or perform the Obligations, including any interest therein (including interest as provided relevant Obligation at the place and in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after manner specified in the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromrelevant Credit Document.
(b) Regardless Each Guarantor further agrees to pay any and all reasonable and documented out-of-pocket expenses (including all reasonable and documented out-of-pocket fees and disbursements of whether any proposed guarantor counsel) that may be paid or incurred by the Administrative Agent or any other Person shall become Guaranteed Party in any other way responsible to the Lender Groupenforcing, or any obtaining advice of them, for or counsel in respect of, any rights with respect to, or collecting, any or all of the Obligations and/or enforcing any rights with respect to, or any part thereofcollecting against, and regardless of whether or not any Person now or hereafter responsible such Guarantor under this Guaranty; provided that such agreement shall be limited to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease out-of-pocket costs and expenses required to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid or reimbursed in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) accordance with Section 13.6 of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminatedAgreement.
(c) Each Guarantor absolutely, unconditionally agrees that the Obligations may at any time and irrevocably waives any and all right from time to assert any defense (other than time exceed the defense amount of payment in cash in full, to the extent liability of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to Guarantor hereunder without impairing this Guaranty or affecting the obligations rights and remedies of the Guarantors under this Guaranty Administrative Agent or any other Guaranteed Party hereunder.
(d) No payment or payments made by any Borrower, any of the obligations of Guarantors, any other guarantor or any other Person or party (including Borrowers) relating to this Guaranty received or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought collected by the Administrative Agent or any other member of the Lender Group to collect the Obligations or Guaranteed Party from any portion thereofBorrower, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender GroupGuarantors, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, other Person by virtue of any action or proceeding or any right of counterclaim set-off or offset of any nature appropriation or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, application at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any in reduction of or in payment of the Obligations (shall be deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder, which shall, notwithstanding any such payment or payments other than payments made by such Guarantor in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion respect of the Obligations hereby guaranteedor payments received or collected from such Guarantor in respect of the Obligations, remain liable for the Obligations up to the maximum liability of such Guarantor hereunder until the Obligations under the Credit Documents are paid and performed in such order full (other than contingent obligations that are not yet due and payable) and the Commitments are terminated and no Letters of application as Credit shall be outstanding (except to the Administrative Agent may extent backstopped or cash collateralized to the reasonable satisfaction of the applicable Issuing Bank).
(e) Each Guarantor agrees that whenever, at any time, or from time to time elect in accordance with this Agreementtime, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes it shall make any payment to the Administrative Agent or any other Person pursuant Guaranteed Party on account of its liability hereunder, it will notify the Administrative Agent in writing that such payment is made under this Guaranty for such purpose (provided that the failure to or provide such notice shall not result in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate payment not being applied to the prior Obligations or such payment in full of the Obligations to the satisfaction of the Lender Groupbeing deemed not made).
(gf) The creation or existence from time to time of Obligations in excess If acceleration of the amount committed to or outstanding on the date time for payment of this Guaranty any Obligation by a Borrower is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights stayed by reason of the Lender Group herein. It is insolvency or receivership of such Borrower or otherwise, all Obligations otherwise subject to acceleration under the intention terms of each Guarantor and any Credit Document shall nonetheless be payable by the Guarantors hereunder forthwith on demand by the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorsAgent.
Appears in 1 contract
Sources: Guaranty (NXP Semiconductors N.V.)
Guaranty. (a) Each Guarantor Borrower hereby unconditionally and irrevocably, guarantees to the Administrative Agent, for Lender:
(i) the benefit of due and punctual payment in full (and not merely the Lender Group, collectibility) by the full and prompt payment other Borrowers of the Obligations, including any unpaid and accrued interest therein (including interest as provided thereon, in each case when due and payable, all according to the terms of this Agreement, accruing after the filing Notes and the other Financing Documents;
(ii) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of a petition initiating all other sums and charges which may at any Insolvency Proceedingstime be due and payable in accordance with this Agreement, whether the Notes or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes any of the Bankruptcy Code or is an allowed claim other Financing Documents;
(iii) the due and punctual performance by the other Borrowers of all of the other terms, covenants and conditions contained in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromFinancing Documents; and
(iv) all the other Obligations of the other Borrowers.
(b) Regardless The obligations and liabilities of whether any proposed each Borrower as a guarantor or any other Person under this Section 2.3.11 shall become in any other way responsible to the Lender Groupbe absolute and unconditional and joint and several, or any of them, for or in respect irrespective of the Obligations genuineness, validity, priority, regularity or any part thereofenforceability of this Agreement, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations Notes or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all Financing Documents or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing other circumstance which might, but for this paragraph of this Guaranty, be deemed might otherwise constitute a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of . Each Borrower in its capacity as a guarantor expressly agrees that the Lender Groupmay, 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 of themdefaults under, or their failure grant any other indulgences under or with respect to proceed promptly any of the Financing Documents;
(ii) modify, amend, change or otherwise, or by reason terminate any provisions of any action taken of the Financing Documents;
(iii) grant extensions or omitted by renewals of or with respect to the Lender GroupCredit Facilities, the Notes or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.Financing Documents;
(fiv) The Lender Groupeffect any release, subordination, compromise or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or settlement in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance connection with this Agreement, any depositsof the Notes or any of the other Financing Documents;
(v) agree to the substitution, propertyexchange, balancesrelease or other disposition of the Collateral or any part thereof, credit accounts or moneys any other collateral for the Revolving Credit or to the subordination of any Guarantor lien or security interest therein;
(vi) make advances for the purpose of performing any term, provision or covenant contained in the possession of this Agreement, any member of the Lender Group Notes or under their respective control for any purpose. If of the other Financing Documents with respect to which the Borrowers shall then be in default;
(vii) make future advances pursuant to the Financing Agreement or any of the other Financing Documents;
(viii) assign, pledge, hypothecate or otherwise transfer the Revolving Credit Commitment, the Obligations, the Notes, any of the other Financing Documents or any interest therein, all as and to the extent that permitted by the provisions of this Agreement;
(ix) deal in all respects with the other Borrowers as if this Section 2.3.11 were not in effect;
(x) effect any Guarantor makes release, compromise or settlement with any payment to of the Administrative Agent other Borrowers, whether in their capacity as a Borrower or as a guarantor under this Section 2.3.11, or any other Person pursuant guarantor; and
(xi) provide debtor-in-possession financing or allow use of cash collateral in proceedings under the Bankruptcy Code, it being expressly agreed by all Borrowers that any such financing and/or use would be part of the Obligations.
(c) The obligations and liabilities of each Borrower, as guarantor under this Section 2.3.11, shall be primary, direct and immediate, shall not be subject to any counterclaim, recoupment, set off, reduction or in respect of this Guaranty, defense based upon any claim which such Guarantor 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 by reason thereof shall be subject and subordinate with respect to this Agreement, the Notes or any of the other Financing Documents, whether pursuant to the prior payment terms thereof or by operation of law. Without limiting the generality of the foregoing, the Lender shall not be required to make any demand upon any of the Borrowers, or to sell the Collateral or otherwise pursue, enforce or exhaust its remedies against the Borrowers or the Collateral either before, concurrently with or after pursuing or enforcing its rights and remedies hereunder. Any one or more successive or concurrent actions or proceedings may be brought against each Borrower under this Section 2.3.11, either in the same action, if any, brought against any one or more of the Borrowers or in separate actions or proceedings, as often as the Lender may deem expedient or advisable. Without limiting the foregoing, it is specifically understood that any modification, limitation or discharge of any of the liabilities or obligations of any one or more of the Borrowers, any other guarantor or any obligor under any of the Financing Documents, arising out of, or by virtue of, any bankruptcy, arrangement, reorganization or similar proceeding for relief of debtors under federal or state law initiated by or against any one or more of the Borrowers, in their respective capacities as borrowers and guarantors under this Section 2.3.11, or under any of the Financing Documents shall not modify, limit, lessen, reduce, impair, discharge, or otherwise affect the liability of each Borrower under this Section 2.3.11 in any manner whatsoever, and this Section 2.3.11 shall remain and continue in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, force and shall in no way impair or affect this Guaranty or the rights of the Lender Group hereineffect. It is the intention intent and purpose of this Section 2.3.11 that each Guarantor Borrower shall and does hereby waive all rights and benefits which might accrue to any other guarantor by reason of any such proceeding, and the Administrative Agent Borrowers agree that each Guarantor’s they shall be liable for the full amount of the obligations hereunder shall beand liabilities under this Section 2.3.11, but not in excess regardless of, and irrespective to, any modification, limitation or discharge of the Maximum Guaranteed Amount 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 herein defined). The “Maximum Guaranteed Amount” guarantor under this Section 2.3.11, hereby unconditionally, jointly and severally, irrevocably and expressly waives:
(i) presentment and demand for payment of the Obligations and protest of non-payment;
(ii) notice of acceptance of this Section 2.3.11 and of presentment, demand and protest thereof;
(iii) notice of any default hereunder or under the Notes or any of the other Financing Documents and notice of all indulgences;
(iv) notice of any increase in the amount of any of or all of the indebtedness guaranteed by this Section 2.3.11;
(v) demand for observance, performance or enforcement of any of the terms or provisions of this Section 2.3.11, the Notes or any of the other Financing Documents;
(vi) all errors and omissions in connection with respect the Lender's administration of all indebtedness guaranteed by this Section 2.3.11, except errors and omissions resulting from the Lender's acts of willful misconduct or gross negligence;
(vii) any right or claim of right to cause a marshalling of the assets of any Guarantor, shall mean one or more of the maximum amount other Borrowers;
(viii) any act or omission of the Lender which could be paid changes the scope of the risk as guarantor hereunder; and
(ix) all other notices and demands otherwise required by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to law which the insolvency of debtorsBorrower may lawfully waive.
Appears in 1 contract
Sources: Financing and Security Agreement (Spacehab Inc \Wa\)
Guaranty. (a) Each The Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment performance when due of all present and future obligations of Luxco 2 to Genworth and its Affiliates under the OSAA, each of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency ProceedingsAmended ARMOAs and each other agreement between Luxco 2 and Genworth and/or its Affiliates, whether now existing or not hereafter arising, created, assumed, incurred or acquired, including, without limitation, the due and punctual performance of all covenants, agreements, obligations and liabilities of Luxco 2 under or pursuant to the OSAA, each Amended ARMOA and each such interest accrues or is recoverable against Borrowers after other agreement (collectively, the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding“Obligations”), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether Genworth and its Affiliates may, at their option, proceed against the Guarantor, in the first instance to enforce the Obligations without first proceeding against Luxco 2, any proposed guarantor other Guarantor or any other Person shall become in Person, and without first resorting to any other way responsible rights or remedies, as Genworth or such Affiliates may deem advisable. Notwithstanding the provisions of Section 8 of this Guaranty, Guarantor further agrees to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives pay any and all right to assert reasonable expenses (including, without limitation, fees and expenses of counsel) incurred by Genworth and its Affiliates in enforcing any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors rights under this Guaranty.
(dc) The Lender GroupGuarantor guaranties that the Obligations will be satisfied strictly in accordance with the terms of the applicable agreement, regardless of any law now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Genworth or its Affiliates with respect thereto. Nothing herein shall be construed as to limit, negate or otherwise affect the rights of Genworth or its Affiliates under the such agreements. The liability of the Guarantor under this Guaranty shall be absolute and unconditional irrespective of:
(i) any change in or any other amendment or waiver of any term of, or any of themconsent to departure from any requirement of, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or applicable agreement;
(ii) release, discharge, abandon any release or otherwise deal with amendment or fail to deal with waiver of any Guarantor term of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Groupother guaranty of, or any consent to departure from any requirement of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documentsother guaranty of, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, Obligations;
(iii) the absence of any attempt or other agreements, instruments or contracts evidencing, related action to or attendant with enforce any of the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, obligor or any right the absence of counterclaim or offset the election of any nature remedy by Genworth or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.its Affiliates; or
(fiv) The Lender Groupany waiver, consent, extension, forbearance or any of them, may, without demand or notice granting of any kind upon indulgence by Genworth or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” its Affiliates with respect to any Guarantor, shall mean provision of the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorsapplicable agreement.
Appears in 1 contract
Sources: Guaranty (Genworth Financial Inc)
Guaranty. (a) Each Guarantor For value received, Live Ventures Incorporated, a Nevada corporation (“Guarantor”), hereby absolutely and unconditionally guarantees to the Administrative Agent▇▇▇▇▇▇▇ Trusts, for and shall become surety for, the punctual payment when due of all obligations of Buyer under this Note (the “Guaranteed Obligations”), as and when the same shall become due and payable. Guarantor’s liability hereunder is a primary and not a secondary liability. This is a guaranty of payment and not of collection, and Guarantor will pay the Guaranteed Obligations promptly upon demand, without recourse first being had against Buyer or any other person, firm or entity. This Guaranty (i) is a continuing, irrevocable guaranty by Guarantor, (ii) shall remain in full force and effect until satisfaction in full of all of the Guaranteed Obligations, whether by payment, set-off or otherwise, (iii) shall be binding upon Guarantor and its successors and (iii) shall inure to the benefit of and be enforceable by the Lender Group▇▇▇▇▇▇▇ Trusts and their permitted assigns. Guarantor hereby consents and agrees that the following actions may be undertaken from time to time without notice to Guarantor: (i) the Purchase Agreement, this Note and any related agreements may be amended in accordance with their terms to increase or decrease the full and prompt payment obligations of the Obligations▇▇▇▇▇▇▇ Trusts or Buyer hereunder; and (ii) the ▇▇▇▇▇▇▇ Trusts and Buyer may compromise or settle any unperformed Guaranteed Obligations or any other obligation or amount due or owing, including any interest therein (including interest as provided in this or claimed to be due or owing, under the Purchase Agreement, accruing after the filing of a petition initiating this Note and/or any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromrelated agreements.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect Guarantor’s obligations hereunder are independent of the obligations of Buyer. Guarantor agrees that it is hereby providing a present and continuing guaranty of payment and not of collection and that its obligations hereunder shall be unconditional, irrespective of (i) the validity or enforceability of the Guaranteed Obligations or any part thereof, and regardless (ii) the waiver or consent by the ▇▇▇▇▇▇▇ Trusts with respect to any provision of whether this Note (other than such waivers, consents, amendments, modifications or not any Person now other changes, in each case, in writing, that by their terms waive or hereafter responsible to modify obligations of the Lender GroupGuarantor), or any amendment, modification or other change with respect to this Note, (iii) any merger or consolidation of themthe Guarantor or any other guarantor of all or part of the Guaranteed Obligations into or with any Person or any change in the ownership of the equity of the Guarantor or any other guarantor of all or part of the Guaranteed Obligations, for (iv) any dissolution of the Guarantor or any other guarantor of all or part of the Guaranteed Obligations or any insolvency, bankruptcy, liquidation, reorganization or similar proceedings with respect to the Guarantor or any other guarantor of all or part thereofof the Guaranteed Obligations, whether (v) any action or inaction on the part of the ▇▇▇▇▇▇▇ Trusts, including, without limitation, the absence of any attempt to collect the Guaranteed Obligations from Buyer, the Guarantor or any other 313784142.5 guarantor of all or part of the Guaranteed Obligations or other action to enforce the same, or (vi) any other circumstance which might otherwise constitute a legal or equitable discharge or defense of the Guarantor or any other guarantor of all or part of the Guaranteed Obligations, in each case, other than the payment or satisfaction in full of the Guaranteed Obligations. Guarantor agrees that payment of any of the Guaranteed Obligations or other acts which toll any statute of limitations applicable to the Guaranteed Obligations or the Purchase Agreement, this Note or any related agreements shall also toll the statute of limitations applicable to Guarantor’s liability under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminatedSection 14.
(c) Each Guarantor absolutely, unconditionally and irrevocably hereby waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing circumstance which might, but for this paragraph of this Guaranty, be deemed might constitute a legal or equitable discharge of a surety or guarantor, including but not limited to: (i) the defenses of promptness, diligence, presentment, demand for payment, protest, notice of dishonor, notice of default, notice of acceptance, notice of intent to accelerate, notice of acceleration, and notice of the incurring of the Guaranteed Obligations created under or by reason pursuant to the Purchase Agreement, this Note and any related agreements; (ii) defenses associated with all other notices whatsoever, except as otherwise provided herein; (iii) any right to require that any action or proceeding be brought against Buyer or any other person, or to require that any ▇▇▇▇▇▇▇ Trust seek enforcement of any waiverperformance against Buyer or any other person, omission prior to any action against Guarantor under the terms hereof; (iv) any right to require any ▇▇▇▇▇▇▇ Trust to (A) proceed against or exhaust any insurance or security held from Buyer or any other party, or (B) pursue any other remedy available to such ▇▇▇▇▇▇▇ Trust; (v) the invalidity of the Lender GroupPurchase Agreement, this Note and any related agreements or the obligations of Buyer thereunder or of any other guaranty or any of themsecurity document given with respect to the Purchase Agreement, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, this Note and any member related agreements; (vi) any law which provides that the obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that or the Lender Groupprincipal or which reduces a surety’s or guarantor’s obligation in proportion to the principal obligation; (vii) any counterclaim, on the set-off or other hand, claim which Buyer or any other guarantor has or suretyalleges to have with respect to all or any part of the obligations guaranteed by Guarantor; and (viii) any other circumstance whatsoever, whether similar or dissimilar to any of the foregoing, that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor (excluding the defense of payment or performance), and such any future judicial decisions or legislation or of any comparable provisions of the laws of any other jurisdiction.
(d) Guarantor hereby expressly waives additionally represents and surrenders any defense warrants to Lender as follows:
(i) Guarantor has the requisite power and authority to enter into this Guaranty and carry out its liability obligations hereunder, and the execution, delivery, and performance of this Guaranty have been duly and validly authorized and no other corporate proceedings on the part of Guarantor or its affiliates are necessary to authorize this Guaranty or the transactions contemplated hereby; (ii) No authorization or approval or other action by, and no notice to or filing with, any governmental authority or other regulatory body or third party is required for the due execution, delivery and performance by Guarantor of this Guaranty that has not already been obtained or the absence of which would materially and adversely affect Guarantor’s ability to meet its obligations under this Guaranty; (iii)This Guaranty, when executed, shall constitute a valid and binding agreement of Guarantor and is enforceable against Guarantor in accordance with the terms of this Guaranty, except as may be limited by bankruptcy or insolvency or by other laws affecting the rights of creditors generally or as such enforceability may be limited by general principles of equity, regardless of whether such enforceability is considered in a proceeding in equity or at law; and (iv) As of the date hereof, the execution, delivery, and performance of this Guaranty does not and will not constitute an event which would permit any person or entity to terminate rights or accelerate the performance or maturity of any indebtedness or obligation of Guarantor, the effect of which would materially and adversely affect Guarantor’s ability to meet its obligations under this Guaranty.
(e) No amendment of any provision of this Section 14 shall be effective unless it is in writing and signed by Guarantor, each ▇▇▇▇▇▇▇ Trust or any right permitted assignee of counterclaim or offset such ▇▇▇▇▇▇▇ Trust’s rights 313784142.5 hereunder, and no waiver of any nature or description which it may have or may exist based uponprovision of this Guaranty, and no consent to any departure by Guarantor therefrom, shall be effective unless it is in writing and signed by each ▇▇▇▇▇▇▇ Trust or any permitted assignee of such ▇▇▇▇▇▇▇ Trust’s rights hereunder. No waiver or consent shall be deemed to have consented to, constitute a waiver or consent on any of the foregoing acts, omissions, things, agreements or waiverssubsequent occasion.
(f) The Lender Group, Neither Guarantor nor the ▇▇▇▇▇▇▇ Trusts may assign their rights or any of them, may, delegate its duties without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any the written consent of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Groupparty.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. (a) Each Subsidiary Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender GroupSecured Parties, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedingsinsolvency proceedings, whether or not such interest accrues or is recoverable against the Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by the guaranty set forth in this Guaranty Article 5 (this “Guaranty”) are collected by law, through an attorney-at-law, or under advice therefrom; provided that, anything to the contrary contained in the foregoing notwithstanding, the Obligations guaranteed by any Subsidiary Guarantor shall exclude any Excluded Swap Obligation.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Subsidiary Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations (other than Excluded Swap Obligations) shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit L/C Obligations, secured through delivery of cash collateral in an amount equal to one hundred and five percent (105%) of the Letter of Credit L/C Obligations) and the Revolving Loan Credit Commitment shall have been terminated.
(c) Each Subsidiary Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Subsidiary Guarantor’s liability is limited as provided in Section 3.1(g5.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Subsidiary Guarantors under this Guaranty or the obligations of any other Person or party (including the Borrowers) relating to this Guaranty or the obligations of any of the Subsidiary Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Subsidiary Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Subsidiary Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Subsidiary Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e5.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Subsidiary Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Subsidiary Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Subsidiary Guarantor pursuant to this Guaranty; it being the purpose and intent of the Subsidiary Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Subsidiary Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Subsidiary Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Subsidiary Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this GuarantySection 5.1(e), be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Subsidiary Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Subsidiary Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Subsidiary Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Subsidiary Guarantor, if the Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit L/C Obligations, secured through delivery of cash collateral in an amount equal to one hundred and five percent (105%) of the Letter of Credit L/C Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Subsidiary Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Subsidiary Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Subsidiary Guarantor may have against the Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Subsidiary Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Subsidiary Guarantor and the Administrative Agent that each Subsidiary Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Subsidiary Guarantor, shall mean means the maximum amount which could be paid by such Subsidiary Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state state, provincial or Federal federal (United States or Canada) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws (including, without limitation, any applicable corporations legislation to the extent the relief sought under such corporations legislation relates to or involves the compromise, settlement, adjustment or arrangement of debt) relating to the insolvency of debtors.
Appears in 1 contract
Sources: Credit Agreement (La-Z-Boy Inc)
Guaranty. (a) Each Guarantor hereby Project Company, as primary obligor and not merely as surety, absolutely, unconditionally and irrevocably and jointly and severally with each other Project Company guarantees to the Administrative Agent, for the benefit of the Lender Group, Secured Parties the full and prompt punctual payment when due, whether at stated maturity, by acceleration or otherwise, of all of the Bond Obligations, including any interest therein (including interest as provided in this Agreementthe Reimbursement Obligations, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after Depositary Obligations and the filing of such petition for purposes Swap Obligations of the Bankruptcy Code or is an allowed claim Issuer under the Financing Documents, together with the payment in such proceeding), plus reasonable attorneys’ full of all fees and expenses if incurred by the obligations represented by this Collateral Agent or any other Secured Party in enforcing any such Obligations or the terms hereof, including reasonable fees and expenses of its legal counsel and agents (collectively, the "Guaranteed Obligations"), and agrees that if, for any reason, the Issuer shall fail to pay when due any of the Guaranteed Obligations, such Project Company will pay the same forthwith. Each Project Company waives notice of acceptance of its Guaranty are collected by lawand of any obligation to which it applies or may apply under the terms hereof, through an attorneyand waives promptness, diligence, presentment, demand of payment or performance, notice of dishonor or non-atpayment or non-lawperformance, protest, or under advice therefromnotice of protest, of any such obligations, suit or taking other action by any Secured Party against, and giving any notice of default or other notice to, or making any demand on, any party liable thereon (including any Project Company).
(b) Regardless of whether any proposed guarantor or any other Person shall become If, notwithstanding the representation and warranty set forth in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%Section 2.2(aa) of the Letter of Credit Obligations) Insurance and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, Reimbursement Agreement or anything to the extent contrary herein, enforcement of its obligations hereunder, or a defense that such Guarantor’s the liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Project Company under its Guaranty or for the obligations full amount of the Guarantors under this Guaranty Guaranteed Obligations would be an unlawful or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable voidable transfer under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, applicable fraudulent conveyance or other similar laws relating fraudulent transfer law or any comparable law, then the liability of such Project Company hereunder shall be reduced to the insolvency of debtorshighest amount for which such liability may then be enforced without giving rise to an unlawful or voidable transfer under any such law.
Appears in 1 contract
Sources: Common Agreement (NRG Energy Inc)
Guaranty. (a) Each Guarantor hereby hereby, jointly and severally, guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including including, without limitation, any interest therein (including including, without limitation, interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedingsinsolvency proceedings, whether or not such interest accrues or is recoverable against Borrowers any Borrower after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable and documented out-of-pocket attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid Paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminatedFull.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including including, without limitation, the Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, increase, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each the performance of and every one Payment in Full in cash of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwiseObligations, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrowerthe Borrowers, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if the Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five and three percent (105103%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers any Borrower by reason thereof shall be subject and subordinate to the prior payment Payment in full Full in cash of the Obligations to the satisfaction of the Lender GroupObligations.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but be not in excess of, of the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. Guarantor absolutely, irrevocably and unconditionally guarantees the prompt payment when due of all amounts under the Note, in accordance with its terms, to CPH, including, without limitation, costs of collection, which shall include reasonable attorneys fees (collectively referred to herein as the "Obligations"). Notwithstanding anything to the contrary contained herein, to satisfy the Obligations when due, CPH shall be entitled to make a claim against all or any portion of the assets of Guarantor. Guarantor further agrees that:
(a) Each Guarantor hereby guarantees to the Administrative AgentThis Guaranty is in all respects continuing, for the benefit of the Lender Groupabsolute, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromunconditional.
(b) Regardless This Guaranty is a guaranty of whether both performance and payment when due, and not of collection.
(c) CPH may, from time to time, at CPH's sole discretion and without notice to Guarantor, take any proposed guarantor or any other Person shall become all of the following actions:
(i) Accept a security interest in any other way responsible property to secure payment of any or all of the Obligations;
(ii) Obtain the primary or secondary obligation of any third party in addition to the Lender GroupGuarantor with respect to any or all of the Obligations;
(iii) Release, compromise, extend, alter, or modify any of them, for or in respect of the Obligations or any part thereofobligation of any nature of any other obligor with respect to any of the Obligations;
(iv) Release, and regardless of whether or not any Person now or hereafter responsible to the Lender Groupcompromise, or extend any obligation of Guarantor hereunder;
(v) Release any security interest in, or surrender, release, or permit any substitution or exchange for, all or any part of any property securing any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations obligation hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g))release, set-offcompromise, counterclaim extend, alter, or cross-claim modify any obligation of any nature whatsoever of any obligor with respect to this Guaranty any such property; and
(vi) Resort to or the obligations of the Guarantors under this Guaranty proceed against Guarantor for performance or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations payment of any of the Guarantors under this Guaranty Obligations whether or otherwise not CPH shall have proceeded against TSI or any other obligor primarily or secondarily obligated with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group Obligations, shall have resorted to collect any property securing any of the Obligations or any portion thereofobligation hereunder, or to enforce the obligations of shall have pursued any of the Guarantors under this Guarantyother remedy.
(d) The Lender GroupAs between CPH and the Guarantor, any amounts received by CPH from whatever source on account of any Obligation (arising by whatever means) shall be applied by CPH toward the payment of any Obligation then due and payable, in the following order:
(i) To Obligations that have matured; provided that if the payment is insufficient to pay all Obligations that have matured, pro rata between the matured Obligations according to the relative principal amounts due thereunder; and
(ii) If no Obligations are matured and unpaid, then pro rata between the unmatured Obligations according to the relative principal amounts due thereunder. Notwithstanding any performance or any payments made by or for the account of them, may from time Guarantor pursuant to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take Guarantor will not be subrogated to any rights of CPH until such further or other security or securities for the Obligations or any part thereof time as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor CPH shall have received performance and payment in full of all of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any and performance of them, or (iii) amend, modify, extend, accelerate or waive in any manner any all obligations of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretionGuarantor hereunder. Without limiting the generality of the foregoing, if CPH is required at any time to return all or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage part of any security for payment applied by CPH to the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms payment of the Obligations or any of the Loan Documents, costs or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to expenses covered by this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation virtue of law the insolvency, bankruptcy, or reorganization of Guarantor or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing the Obligations to which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and returned payment was applied shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon continued in existence and this Guaranty shall continue to be effective or to any Guarantorbe reinstated, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in as the case of Letter of Credit may be, as to such Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off as though such payment had not been received and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupCPH had not been made.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Guaranty and Suretyship Agreement (Amcon Distributing Co)
Guaranty. For valuable consideration, the receipt of which is hereby acknowledged, and to induce the Lenders to make advances to each Borrower and to issue and participate in Letters of Credit and Swing Line Loans, the Company and each Designated Borrower (acollectively, including the Company, the “Borrower Guarantors”) Each Guarantor hereby absolutely and unconditionally guarantees prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of any and all existing and future Obligations of each Borrower to the Collateral Agent, the Administrative Agent, for the benefit of the Lender GroupSecured Creditors, the full and prompt payment of Swing Line Lender, the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender GroupL/C Issuers, or any of them, for under or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient whether for principal, interest, fees, expenses or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangementsotherwise, and realize upon any security for Secured Cash Management Agreement, any Secured Hedge Agreement and any Secured Bilateral Letter of Credit (including all renewals, extensions, amendments, refinancings and other modifications thereof and all costs, attorneys’ fees and expenses incurred by the Obligations when, and Secured Creditors in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant connection with the collection or enforcement thereof) (collectively, the “Guaranteed Obligations”); provided that Guaranteed Obligations (including of a Loan Party shall exclude any novation), shall discharge all or any part of the liabilities and obligations of Excluded Swap Obligations with respect to such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstancesLoan Party. Without limiting the generality of the foregoing, each Guarantor agrees Borrower Guarantor’s liability shall extend to all amounts that until each and every one constitute part of the covenants Guaranteed Obligations and agreements would be owed by any other Loan Party to any Lender under or in respect of this Guaranty is fully performedthe Loan Documents but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or similar proceeding involving such other Loan Party. Each Borrower Guarantor, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph its acceptance of this Guaranty, be deemed the Administrative Agent and each other Lender Party, hereby confirms that it is the intention of all such Persons that this Guaranty and the Obligations of each Borrower Guarantor hereunder not constitute a legal fraudulent transfer or equitable discharge conveyance for purposes of a surety or guarantorDebtor Relief Laws, or by reason of any waiverthe Uniform Fraudulent Conveyance Act, omission of the Lender Group, Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to this Guaranty and the Obligations of themeach Borrower Guarantor hereunder. To effectuate the foregoing intention, the Administrative Agent, the Lenders and the Borrower Guarantors hereby irrevocably agree that the Obligations of each Borrower Guarantor under this Guaranty at any time shall be limited to the maximum amount as will result in the Obligations of such Borrower Guarantor under this Guaranty not constituting a fraudulent transfer or their failure conveyance. Each Borrower Guarantor hereby unconditionally and irrevocably agrees that in the event any payment shall be required to proceed promptly or otherwise, or by reason of be made to any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, under this Guaranty or any other guarantor or suretyguaranty, and such Borrower Guarantor hereby expressly waives and surrenders any defense to its liability hereunderwill contribute, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the maximum extent that any permitted by law, such amounts to each other Borrower Guarantor makes any payment and each other guarantor so as to maximize the aggregate amount paid to the Administrative Agent or any other Person pursuant to Lenders under or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group hereinLoan Documents. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.155 89826417_6
Appears in 1 contract
Guaranty. (a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender GroupGuarantors hereby unconditionally and irrevocably guarantees, jointly with the other Guarantors and severally, as primary obligor and not merely as a surety, irrespective of the validity of the Obligations, waiving all rights of objection and defense arising from the Obligations, the full and prompt punctual payment and performance when due (whether at stated maturity, upon acceleration or otherwise) of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to timeincluding, without exonerating or releasing any Guarantor in any way under this Guarantylimitation, (i) take such further or other security or securities for the Obligations or principal of and interest on each Loan made to any part thereof as they may deem properBorrower pursuant to the Credit Agreement, or (ii) releaseany obligations of any Borrower to reimburse LC Disbursements (“Reimbursement Obligations”), discharge, abandon or otherwise deal with or fail to deal with (iii) all obligations of any Guarantor of the Obligations Borrower or any security or securities therefor Subsidiary owing to any Lender or any part thereof now affiliate of any Lender under any Guaranteed Hedge Agreement or hereafter held Banking Services Agreement, (iv) all other amounts payable by the Lender Group, any Borrower or any of themits Subsidiaries under the Credit Agreement, any Guaranteed Hedge Agreement, any Banking Services Agreement and the other Loan Documents and (v) the punctual and faithful performance, keeping, observance, and fulfillment by any Borrower or (iii) amend, modify, extend, accelerate or waive in any manner any other Loan Party of all of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencingconditions, related to or attendant with the Obligations (including any novation)covenants, shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being Loan Party contained in the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and Loan Documents (all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or being referred to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application collectively as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in “Guaranteed Obligations” and the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence holders from time to time of the Guaranteed Obligations in excess being referred to collectively as the “Holders of Guaranteed Obligations”). Upon (x) the failure by any Loan Party or any of its Affiliates, as applicable, to pay punctually any such amount or perform such obligation, and (y) such failure continuing beyond any applicable grace or notice and cure period, each of the Guarantors agrees that it shall forthwith on demand pay such amount committed to or outstanding on perform such obligation at the date place and in the manner specified in the Credit Agreement, any Guaranteed Hedge Agreement, any Banking Services Agreement or the relevant Loan Document, as the case may be. Each of the Guarantors hereby agrees that this Guaranty is hereby authorizedan absolute, without notice irrevocable and unconditional guaranty of payment and is not a guaranty of collection. Notwithstanding any limitation on liability set forth herein to any Guarantorthe contrary, if the Guaranteed Obligations are made subject to a debt restructuring arrangement between a country and its creditors or creditors of persons or entities of such country, and as a result thereof any Holder of Guaranteed Obligations and other credit facilities to such country, persons or entities of such country, shall in no way impair or affect this Guaranty or agree to provide any new credit facilities, each Guarantor shall fund (and be the rights beneficial owner of) that amount of such new credit facilities which is calculated by (i) dividing the face value of such Guaranteed Obligations by the aggregate amount of the Lender Group hereinHolder of Guaranteed Obligations’ credit facilities made part of the restructuring arrangement and (ii) multiplying the result by the amount of such new credit facilities. It is the intention of each Each Guarantor agrees to execute and deliver such documents and take such actions as may reasonably be requested by the Administrative Agent that to effect the purposes of this paragraph. Each Holder of Guaranteed Obligations agrees to provide each Guarantor with copies of the relevant documents governing its participation in the restructuring arrangement and new credit facilities and shall provide such Guarantor with the basis on which it has calculated such Guarantor’s obligations hereunder portion of such new credit facilities, which calculations shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorsconclusive absent manifest error.
Appears in 1 contract
Sources: Credit Agreement (Bruker Corp)
Guaranty. (a) Each Guarantor hereby Guarantor, jointly and severally, irrevocably, absolutely and unconditionally guarantees as a primary obligor and not merely as surety to the Creditors the full and prompt payment when due (whether at the stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, as applicable) of all Obligations of the Borrowers and each Guarantor (other than such Guarantor’s own Obligations) (the “Guaranteed Obligations”). Each party hereto understands, agrees and confirms that, if any or all of the Guaranteed Obligations becomes due and payable, subject to the expiration of any applicable grace or cure period expressly set forth in the Credit Agreement, the Administrative Agent, Agent for the benefit of the Lender Group, Creditors may enforce this Guaranty up to the full amount of the Guaranteed Obligations against such Guarantor without proceeding against any other Guarantor (as defined in the Credit Agreement) or either Borrower, and prompt such Guarantor agrees to pay such Guaranteed Obligations to the Administrative Agent for the benefit of the Administrative Agent and/or the other Creditors, on demand. Each Guarantor further agrees that the due and punctual payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing Obligations of a petition initiating any Insolvency Proceedings, whether either Borrower may be extended or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be releasedrenewed, in whole or in part, by without notice to or further assent from it, and that it will remain bound upon its guarantee hereunder notwithstanding any action such extension or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason renewal of any waiverObligation. This Guaranty is a guaranty of payment and not of collection.
(b) Additionally, omission of each Guarantor, jointly and severally, unconditionally, absolutely and irrevocably, guarantees the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason payment of any action taken or omitted by the Lender Group, or any of them, and all Guaranteed Obligations whether or not such action due or failure to act varies or increases payable by either Borrower upon the risk of, or affects the rights or remedies of, such Guarantor or by reason occurrence in respect of any further dealings between any Borrower, on the one hand, and any member either Borrower of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing actsevents specified in Section 7(h) or (i) of the Credit Agreement, omissionsand unconditionally, thingsabsolutely and irrevocably, agreements or waivers.
(f) The Lender Groupjointly and severally, promises to pay such Guaranteed Obligations to the Creditors, or any order, following the occurrence in respect of them, may, without demand or notice either Borrower of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations events specified in Section 7(h) or (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%i) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Groupon demand.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: 364 Day Bridge Credit Agreement (CF Industries Holdings, Inc.)
Guaranty. In consideration of [NAME OF HOLDING COMPANY], a Cayman Islands company (a) Each “Holdco”), purchasing the member interests in the Beneficiary pursuant to the [ ] (the “Purchase Agreement”), the Guarantor hereby irrevocably guarantees to the Administrative Agent, for Beneficiary the benefit payment within the time period prescribed by Section 2 hereof of all accounts receivable held by the Beneficiary on the closing date of the Lender Group, Purchase Agreement to the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition extent taken into account for purposes of computing the Bankruptcy Code or is an allowed claim in such proceeding)[Working Capital]2 thereunder (collectively, plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof“Receivables”, and regardless of whether or not any Person now or hereafter responsible to the Lender Groupeach account debtor that is obligated on a Receivable, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g“Account Debtor”)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the . The obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole hereunder shall be unconditional and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, discharged or otherwise affected by, and the Guarantor hereby waives any defense related to: (i) any extension, renewal, settlement, compromise, waiver or release in whole respect of any Receivable that has been approved by the Guarantor; (ii) any modification or amendment of or supplement to the Purchase Agreement; (iii) any change in partthe corporate existence, structure or ownership of Holdco, the Beneficiary or any of the Account Debtors, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting Holdco, the Beneficiary or any of the Account Debtors or their respective assets; (iv) the existence of any claim, set-off or other rights which the Guarantor may have at any time against Holdco, the Beneficiary, any Account Debtor or any other corporation or person, whether in connection herewith or with any unrelated transactions; (v) any invalidity or unenforceability relating to or against any of the Account Debtors for any reason in respect of the Receivables, or any provision of applicable law or regulation purporting to prohibit the payment by any action of the Account Debtors of any of the Receivables; or thing which might(vi) any other act or omission to act or delay of any kind by Holdco, the Beneficiary, any Account Debtor or any other corporation or person or any other circumstance whatsoever that could, but for this paragraph the provisions of this Guarantyparagraph, be deemed constitute a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorshereunder.
Appears in 1 contract
Sources: Customer Receivables Guaranty (Transocean Partners LLC)
Guaranty. (a) [Each Guarantor hereby of the][The] undersigned hereby, unconditionally and irrevocably, as primary obligor and not merely as surety, guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment when due, whether by acceleration or otherwise, and at all times thereafter, of (a) all Obligations of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Foreign Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless all reasonable and documented out-of-pocket costs and expenses (including the reasonable fees and charges of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, one counsel for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares Administrative Agent and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowerslocal counsel reasonably deemed appropriate by such counsel) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought incurred by the Administrative Agent during the existence of an Event of Default in enforcing this Guaranty or any other member of applicable Loan Document against [such][the] undersigned (all such obligations, collectively, the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, “Liabilities”); provided that (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor liability of [each of] the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings undersigned hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure limited to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor of the Liabilities that [such][the] undersigned may guaranty without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in with respect to [such][the] undersigned under any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratoriumfraudulent conveyance, fraudulent conveyance transfer or similar law and (ii) the Liabilities, as to [any of] the undersigned, shall not include any Excluded Swap Obligations. 9 Note to Draft: Borrower Counsel to complete exhibit [Each of the][The] undersigned, to the extent that it is a Qualified ECP Guarantor, hereby [jointly and severally], absolutely, unconditionally and irrevocably undertakes to provide funds or other similar laws relating support to each Specified Loan Party that is a Foreign Borrower with respect to such Swap Obligation as may be needed by such Specified Loan Party from time to time to honor all of its obligations under the Loan Documents in respect of such Swap Obligation (but, in each case, only up to the insolvency maximum amount of debtorssuch liability that can be hereby incurred without rendering such Qualified ECP Guarantor’s obligations and undertakings under this Section 2 voidable under any applicable fraudulent transfer or conveyance act, and not for any greater amount). Unless such Qualified ECP Guarantor is released in accordance with Section 9 hereunder, the obligations and undertakings of each Qualified ECP Guarantor under this Section shall remain in full force and effect until the Obligations have been Paid in Full (as defined below). Each Loan Party intends this Section to constitute, and this Section shall be deemed to constitute, a guarantee of the obligations of, and a “keepwell, support or other agreement” for the benefit of, each other Loan Party for all purposes of the Commodity Exchange Act.
Appears in 1 contract
Sources: Credit Agreement (Middleby Corp)
Guaranty. To induce the Guaranteed Party to enter into an Agreement and Plan of Merger, dated as March 8, 2012 (a) Each Guarantor hereby guarantees to the Administrative Agentas amended, for the benefit of the Lender Groupamended and restated, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty supplemented or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may modified from time to time, without exonerating or releasing any Guarantor including Amendment No. 1 to the Agreement and Plan of Merger dated June 19, 2012, the “Merger Agreement”; capitalized terms used but not defined herein shall have the meanings given to such terms in any way under this Guarantythe Merger Agreement) among Expedition Holding Company, Inc., a Delaware corporation (i“Parent”), Expedition Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger Sub”), and the Guaranteed Party, pursuant to which Merger Sub will merge with and into the Guaranteed Party (the “Merger”), each Guarantor, intending to be legally bound, hereby absolutely, irrevocably and unconditionally, severally but not jointly, guarantees to the Guaranteed Party up to such Guarantor’s respective percentage as set forth opposite its name in Annex 1 (for each such Guarantor, its “Guaranteed Percentage”) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor due and punctual performance and discharge of the Obligations obligation of Parent to pay to the Guaranteed Party the Parent Termination Fee and/or the Damages Remedy (following, with respect to the Damages Remedy, a final, non-appealable order or settlement), as the case may be, and/or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iiiamounts under Section 5.5(b) amend, modify, extend, accelerate or waive in any manner any and Section 7.3(d) of the provisionsMerger Agreement, termsif, or conditions as and when such obligations become payable under the Merger Agreement (the “Guaranteed Obligations”). In no event shall a Guarantor’s liability in respect of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality Guaranteed Obligations exceed such Guarantor’s Guaranteed Percentage of the foregoing, or Guaranteed Obligations (such limitation on the liability each Guarantor may have for its Guaranteed Percentage of Section 3.1(ethe Guaranteed Obligations being herein referred to as such Guarantor’s “Cap”), it is being understood that this Limited Guaranty may not be enforced against any Guarantor without giving effect to such Guarantor’s Cap (and to the Lender Groupprovisions of Sections 7 and 8 hereof). This Limited Guaranty may be enforced for the payment of money only. All payments hereunder shall be made in lawful money of the United States, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage in immediately available funds. Each Guarantor promises and undertakes to make all payments hereunder free and clear of any security for the Obligations and accept deduction, offset, defense, claim or make counterclaim of any compositions or arrangementskind, and realize upon any security for the Obligations when, and except as expressly provided in such manner, and with or without notice, all as such Person may deem expedient.
(e) this Limited Guaranty. Each Guarantor acknowledges that the Guaranteed Party entered into the transactions contemplated by the Merger Agreement in reliance upon the execution of this Limited Guaranty. If Parent fails to discharge its Guaranteed Obligations when due, then each Guarantor’s liabilities to the Guaranteed Party hereunder in respect of such Guaranteed Obligations shall, upon the Guaranteed Party’s demand, become immediately due and agrees that no change in payable (up to each Guarantor’s Cap), and the nature or terms of Guaranteed Party may at any time and from time to time, at the Obligations or Guaranteed Party’s option, and so long as Parent has failed to discharge any of the Loan Documentsits Guaranteed Obligations, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under take any and all circumstances. Without limiting the generality actions available hereunder to collect any Guarantor’s liabilities hereunder in respect of the foregoingsuch Guaranteed Obligations, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, subject to such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waiversCap.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. (a) Each Guarantor hereby Guarantying Party other than the Borrowers absolutely and unconditionally, jointly and severally, with each other and any subsequent Guarantying Party (other than any Borrower), guarantees and agrees to the Administrative Agent, be liable for the benefit full payment and performance by each Borrower when due of all of the Lender GroupObligations (as such term is defined in the Loan Agreement) of such Borrower, other than any such Obligation arising as a result of the following sentence. Each Guarantying Party other than the Company absolutely and unconditionally, jointly and severally, with each other and any subsequent Guarantying Party (other than the Company) guarantees and agrees to be liable for the full payment and prompt payment performance by the Company when due of all of the Obligations (as such term is defined in the Loan Agreement) of the Company. The Obligations guaranteed pursuant to this Section 1 by any Guarantying Party are referred to herein as the “Guaranteed Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing ” of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromGuarantying Party.
(b) Regardless This Guaranty is a guarantee of whether payment and not of collection. Each Guarantying Party agrees that neither Agent nor any proposed guarantor other Secured Party need attempt to collect any Guaranteed Obligations from any Borrower, any other Guarantying Party or any other Person shall become in Obligor or to realize upon any other way responsible collateral, but may require any Guarantying Party to make immediate payment of all of its Guaranteed Obligations to Agent when due, whether by maturity, acceleration or otherwise, or at any time thereafter. Subject to the Lender GroupIntercreditor Agreement, or Agent and Secured Parties may apply any of them, for or amounts received in respect of the Guaranteed Obligations to any of the Guaranteed Obligations, in whole or in part (including attorneys’ fees and legal expenses incurred by Agent or any part thereof, and regardless of whether or not any Person now or hereafter responsible Secured Party with respect thereto to the Lender Groupextent reimbursable by Borrowers or the Company under the Loan Agreement or otherwise chargeable to Borrowers or the Guarantying Parties in accordance with the terms thereof) in accordance with the Loan Agreement and, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or if not provided in the case of Letter of Credit ObligationsLoan Agreement, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminatedsuch order as Agent may elect.
(c) Each Guarantor absolutelyPayment by Guarantying Parties shall be made to Agent at the office of Agent from time to time on demand as Guaranteed Obligations become due. Except as permitted by Section 6.13 of the Loan Agreement, unconditionally and irrevocably waives any and Guarantying Parties shall make all right payments to assert any defense (other than Agent on the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), Guaranteed Obligations without set-off, counterclaim or cross-claim deductions (other than deductions in respect of Taxes). One or more successive or concurrent actions may be brought hereon against any nature whatsoever with respect to this Guaranty or Guarantying Party either in the obligations of same action in which any Borrower, the Guarantors under this Guaranty or the obligations of any Company, other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent Guarantying Party or any other member of the Lender Group to collect the Obligations Obligor is sued or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guarantyin separate actions.
(d) The Lender GroupNotwithstanding anything to the contrary contained herein, or the amount of the obligations payable by any of them, may from time to time, without exonerating or releasing any Guarantor in any way Guarantying Party under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any the aggregate amount of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the its Guaranteed Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by unless a court of competent jurisdiction in adjudicates such Guarantying Party’s obligations to be invalid, avoidable or unenforceable for any action or proceeding involving reason (including, without limitation, because of any applicable state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws federal law relating to fraudulent conveyances or transfers), in which case the insolvency amount of debtorsGuaranteed Obligations payable by such Guarantying Party hereunder shall be limited to the maximum amount that could be guaranteed by such Guarantying Party without rendering such Guarantying Party’s obligations under this Guaranty invalid, avoidable or unenforceable under such applicable law.
Appears in 1 contract
Sources: Loan and Security Agreement (Nci Building Systems Inc)
Guaranty. (a) Each The Guarantor hereby absolutely, unconditionally and irrevocably guarantees the punctual payment when due, whether at scheduled maturity or on any date of a required prepayment or by acceleration, demand or otherwise, of all Obligations of MTH, MTMHD, MTBV, MTAG, MTF, MTL, MTGH, MTHBV, MTUK, any additional Revolving Borrower which becomes a party hereto pursuant to the Administrative Agent, for the benefit of the Lender Group, the full Section 2.16 and prompt payment of the Obligationseach Subsidiary Swingline Borrower, including any interest therein additional Subsidiary Swingline Borrower which becomes a party hereto pursuant to Section 2.14 (including interest as provided in this Agreementcollectively, accruing after the filing of a petition initiating any Insolvency Proceedings, whether “Designated Borrowers”) now or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or hereafter existing under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Loan Documents (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing Obligations of the Designated Borrowers), whether direct or any part thereofindirect, absolute or contingent, and regardless whether for principal, interest, premiums, fees, indemnities, contract causes of whether action, costs, expenses or not any Person now or hereafter responsible to otherwise (such Obligations being the Lender Group“Guaranteed Obligations”), or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives pay any and all right to assert any defense expenses (other than the defense of payment in cash in fullincluding, to the extent of its obligations hereunderwithout limitation, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including BorrowersAttorney Costs) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought incurred by the Administrative Agent or any other member of the Lender Group to collect the Obligations in enforcing any rights under this Guaranty or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretionDocument. Without limiting the generality of the foregoing, or the Guarantor’s liability shall extend to all amounts that constitute part of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Guaranteed Obligations and accept would be owed by any Designated Borrower to any Lender under or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any respect of the Loan DocumentsDocuments but for the fact that they are unenforceable or not allowable due to the existence of a bankruptcy, reorganization or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable similar proceeding under any and all circumstancesDebtor Relief Law involving such Designated Borrower. Without limiting the generality of the foregoing, each The Guarantor further agrees that until each if payment in respect of any Guaranteed Obligation shall be due in a currency other than Dollars and/or at a place of payment other than in the United States and every one of the covenants and agreements of this Guaranty is fully performedif, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk adoption of, or affects change in, any law or regulation, disruption of currency or foreign exchange markets, war or civil disturbance or other event, payment of such Guaranteed Obligation in such currency or at such place of payment shall be impossible, then, at the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member election of the Lender GroupAdministrative Agent, on the other hand, or any other guarantor or surety, and Guarantor shall make payment of such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist Guaranteed Obligation in Dollars (based upon, and shall be deemed to have consented to, any of upon the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or applicable Spot Rate in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding effect on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or payment) and/or at the rights appropriate United States address of the Lender Group herein. It is the intention of each Guarantor Administrative Agent, and, as a separate and independent obligation, shall indemnify the Administrative Agent Agent, each L/C Issuer and each Lender (or its Affiliate) against any losses or reasonable out-of-pocket expenses that each Guarantor’s obligations hereunder it shall be, but not in excess of, the Maximum Guaranteed Amount (sustain as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by a result of such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorsalternative payment.
Appears in 1 contract
Sources: Credit Agreement (Mettler Toledo International Inc/)
Guaranty. (a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, irrevocably and unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, guaranties (i) take such further or other security or securities for the Obligations or any part thereof as they may deem properperformance by Sellers when due of all covenants, or agreements, and obligations of every nature under the Purchase Agreement and (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor the accuracy and completeness of all representations and warranties of Sellers under the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretionPurchase Agreement. Without limiting the generality of the foregoing, Guarantor hereby absolutely, irrevocably and unconditionally guaranties any and all of Sellers' indemnification obligations under Article 10 of the Purchase Agreement, including but not limited to the full and prompt payment when due of any and all monies which may become due or payable at any time under or pursuant to such indemnification provisions (the performance and indemnification obligations of Section 3.1(eSellers are herein, individually and collectively, referred to as the "Obligations"), it is understood . Guarantor further agrees that the Lender Groupfollowing terms and conditions sh▇▇▇ ▇▇▇▇▇ to this Guaranty:
(a) This Guaranty is in all respects continuing, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangementsabsolute, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedientunconditional.
(eb) Each This Guaranty is a guaranty of both performance and payment when due, and not of collection.
(c) Buyer may, from time to time, at Buyer's sole discretion and withou▇ ▇▇▇ice to Guarantor, take any o▇ ▇▇▇ of the following actions:
(i) Accept a security interest in any property to secure payment of any or all of the Obligations;
(ii) Obtain the primary or secondary obligation of any third party in addition to Guarantor acknowledges and agrees that no change in with respect to any or all of the nature Obligations;
(iii) Release, compromise, extend, alter, or terms modify any of the Obligations or any obligation of any nature of any other obligor with respect to any of the Loan DocumentsObligations;
(iv) Release, compromise, or other agreementsextend any obligation of Guarantor hereunder;
(v) Release any security interest in, instruments or contracts evidencingsurrender, related to release, or attendant with the Obligations (including permit any novation)substitution or exchange for, shall discharge all or any part of any property security any of the liabilities Obligations or any obligation hereunder, or release, compromise, extend, alter, or modify any obligation of any nature of any obligor with respect to any such property; and
(vi) Resort to or proceed against Guarantor for performance or payment of any of the Obligations whether or not Buyer shall have proceeded against Sellers or any other obligor primarily or secondarily obligated with respect to any of the Obligations, shall have resorted to any property securing any of the Obligations or any obligation hereunder, or shall have pursued any other remedy.
(d) As between Buyer and obligations Guarantor, any amounts received by Buyer from whatsoever source on account of any Obligation (arising by whatever means) may be applied by Buyer toward the payment of any Obligation then due and payable, in such order of application as Buyer may from time to time elect, and, notwithstanding any performance or payments made by or for the account of Guarantor pursuant to this Guaranty; it being the purpose , Guarantor will not be subrogated to any rights of Buyer until such time as Buyer shall have received performance and intent payment in full of all of the Guarantors Obligations and the Lender Group that the covenants, agreements and performance of all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstanceshereunder. Without limiting the generality of the foregoing, each Guarantor agrees and acknowledges that until each and every one if Buyer is required at any ▇▇▇▇ ▇▇ ▇eturn all or part of any payment applied by Buyer to the payment of the covenants and agreements of Obligations or any costs or expenses covered by this Guaranty is fully performed, and without possibility of recourseGuaranty, whether by operation virtue of law the insolvency, bankruptcy, or reorganization of any Seller or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing the Obligations to which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and returned payment was applied shall be deemed to have consented tocontinued in existence and this Guaranty shall continue to be effective or to be reinstated, as the case may be, as to such Obligations, as though such payment had not been received and such application by Buyer had not been made.
(e) Guarantor hereby expressly waives:
(i) Notice of the acceptance by Buyer of this Guaranty;
(ii) Notice of the existenc▇, ▇▇eation, release, compromise, extension, alteration, modification, non-performance, or non-payment of any or all of the Obligations;
(iii) Presentment, demand, notice of dishonor, protest, and all other notices whatsoever; and
(iv) All diligence in collection of or realization upon any payments on, or assurance of performance of, any of the foregoing actsObligations or any obligation hereunder, omissionsor in collection on, thingsrealization upon, agreements or waiversprotection of any security for, or guaranty of, any of the Obligations or any obligation hereunder.
(f) The Lender GroupAs between Guarantor and Buyer, Buyer may assign or any otherwise transfer the right to receive performance of them, may, without demand or notice of any kind payment upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply Sellers and/or from Guarantor to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Groupthird party.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Guaranty (Echo Bay Mines LTD)
Guaranty. (a) Each The Guarantor hereby guarantees to the Administrative Agent, for the benefit acknowledges that it is fully aware of the Lender Groupterms and conditions, and has received a copy of, the full and prompt payment of the Obligations, including any interest therein Lease (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after Lease Supplement dated the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceedingFirst Funding Date), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) Participation Agreement and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right other Operative Documents to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or which Lessee has become a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty as the same may be amended, modified or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may supplemented from time to time, collectively, the "Guaranteed Documents") and the transactions contemplated thereby, and hereby absolutely, irrevocably and unconditionally guarantees, as primary obligor and not as surety, without exonerating set-off or releasing any Guarantor in any way deduction, to the Guaranteed Party or Guaranteed Parties entitled thereto under this Guaranty, the term of the Operative Documents
(i) take such further the due punctual and full payment by th Lessee of all payment obligations of the Lessee under the Guaranteed Documents, including, without limitation, all Basic Rent, Renewal Rent Supplemental Rent, Casualty Value and Termination Value when due, whether by acceleration or other security otherwise (including without limitation, wh due by virtue of a Termination Event or securities for a Lease Event of Default) , i accordance with the Obligations or any part thereof as they may deem proper, or terms thereof; and (ii) releasethe performance of each and every other covenant, discharge, abandon agreement and obligation to be performed or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held observed by the Lender GroupLessee under the Guaranteed Documents (collectively, t "Obligations"). The Guarantor hereby agrees that, in the event that the Lessee fails to pay any Obligation for any reason on the date on which such Obligation is required to be paid, the Guarantor will pay or cause be paid such Obligation at the time specified in the Guaranteed Documents, whether by acceleration or otherwise, and that in the case o any extension of them, time of payment or (iii) amend, modify, extend, accelerate or waive in any manner renewal of any of the provisionsObligations, termsthe same will be promptly paid in full when due (whether at extended maturity, by acceleration or conditions of otherwise) in accordance with the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations such extension or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations renewal (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose intention hereof that Guarantor shall promptly pay to each Guaranteed Party, as a payment obligation directly due from Guarantor to such Guaranteed Party, amounts equal to all amounts due to such Guaranteed Party which Lessee shall fail to faithfully and intent of properly pay when due under the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourseGuaranteed Documents, whether by operation of law acceleration or otherwise, such Guarantor’s undertakings hereunder shall not be released). The Guarantor hereby agrees that, in whole or in partthe event that the Lessee fails to perform any other Obligation for any reason on the date which such Obligation is required to be performed, by any action or thing which might, but for this paragraph of this Guaranty, the Guarantor will cause such Obligation to be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure performed when due to proceed promptly or otherwise, or by reason of any action taken or omitted be performed by the Lender Group, or any of them, whether or not such action or failure to act varies or increases Lessee under the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one handGuaranteed Documents, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or that in the case of Letter any extension of Credit time of performance or renewal of any of the Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent the same will be promptly performed on the date performance is due (105%whether by extension or otherwise) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts the terms of suc extension or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Grouprenewal.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. (a) Each Guarantor Borrower hereby unconditionally and irrevocably, guarantees to the Administrative Agent, for Lender:
(i) the benefit of due and punctual payment in full (and not merely the Lender Group, collectibility) by the full and prompt payment other Borrowers of the Obligations, including any unpaid and accrued interest therein (including interest as provided thereon, in each case when due and payable, all according to the terms of this Agreement, accruing after the filing Notes and the other Financing Documents;
(ii) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of a petition initiating all other sums and charges which may at any Insolvency Proceedingstime be due and payable in accordance with this Agreement, whether the Notes or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes any of the Bankruptcy Code or is an allowed claim other Financing Documents;
(iii) the due and punctual performance by the other Borrowers of all of the other terms, covenants and conditions contained in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromFinancing Documents; and
(iv) all the other Obligations of the other Borrowers.
(b) Regardless The obligations and liabilities of whether any proposed each Borrower as a guarantor or any other Person under this Section 2.6.5 shall become in any other way responsible to the Lender Groupbe absolute and unconditional and joint and several, or any of them, for or in respect irrespective of the Obligations genuineness, validity, priority, regularity or any part thereofenforceability of this Agreement, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations Notes or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all Financing Documents or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing other circumstance which might, but for this paragraph of this Guaranty, be deemed might otherwise constitute a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of . Each Borrower in its capacity as a guarantor expressly agrees that the Lender Groupmay, 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 of themdefaults under, or their failure grant any other indulgences under or with respect to proceed promptly any of the Financing Documents;
(ii) modify, amend, change or otherwise, or by reason terminate any provisions of any action taken of the Financing Documents;
(iii) grant extensions or omitted by renewals of or with respect to the Lender GroupCredit Facilities, the Notes or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.Financing Documents;
(fiv) The Lender Groupeffect any release, subordination, compromise or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or settlement in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance connection with this Agreement, any depositsof the Notes or any of the other Financing Documents;
(v) agree to the substitution, propertyexchange, balancesrelease or other disposition of the Collateral or any part thereof, credit accounts or moneys any other collateral for the Loan or to the subordination of any Guarantor lien or security interest therein;
(vi) make advances for the purpose of performing any term, provision or covenant contained in the possession of this Agreement, any member of the Lender Group Notes or under their respective control for any purpose. If 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 that permitted by the provisions of this Agreement;
(ix) deal in all respects with the other Borrowers as if this Section 2.6.5 were not in effect;
(x) effect any Guarantor makes release, compromise or settlement with any payment to of the Administrative Agent other Borrowers, whether in their capacity as a Borrower or as a guarantor under this Section 2.6.5, or any other Person pursuant 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 2.6.5, shall be primary, direct and immediate, shall not be subject to any counterclaim, recoupment, set off, reduction or in respect of this Guaranty, defense based upon any claim which such Guarantor 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 by reason thereof shall be subject and subordinate with respect to this Agreement, the Notes or any of the other Financing Documents, whether pursuant to the prior payment terms thereof or by operation of law. Without limiting the generality of the foregoing, the Lender shall not be required to make any demand upon any of the Borrowers, or to sell the Collateral or otherwise pursue, enforce or exhaust its remedies against the Borrowers or the Collateral either before, concurrently with or after pursuing or enforcing its rights and remedies hereunder. Any one or more successive or concurrent actions or proceedings may be brought against each Borrower under this Section 2.6.5, either in the same action, if any, brought against any one or more of the Borrowers or in separate actions or proceedings, as often as the Lender may deem expedient or advisable. Without limiting the foregoing, it is specifically understood that any modification, limitation or discharge of any of the liabilities or obligations of any one or more of the Borrowers, any other guarantor or any obligor under any of the Financing Documents, arising out of, or by virtue of, any bankruptcy, arrangement, reorganization or similar proceeding for relief of debtors under federal or state law initiated by or against any one or more of the Borrowers, in their respective capacities as borrowers and guarantors under this Section 2.6.5, 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 2.6.5 in any manner whatsoever, and this Section 2.6.5 shall remain and continue in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, force and shall in no way impair or affect this Guaranty or the rights of the Lender Group hereineffect. It is the intention intent and purpose of this Section 2.6.5 that each Guarantor Borrower shall and does hereby waive all rights and benefits which might accrue to any other guarantor by reason of any such proceeding, and the Administrative Agent Borrowers agree that each Guarantor’s they shall be liable for the full amount of the obligations hereunder shall beand liabilities under this Section 2.6.5, but not in excess regardless of, and irrespective to, any modification, limitation or discharge of the Maximum Guaranteed Amount 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 herein defined)guarantor under this Section 2.6.5, 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 2.6.5 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 2.6.5;
(v) demand for observance, performance or enforcement of any of the terms or provisions of this Section 2.6.5, the Notes or any of the other Financing Documents;
(vi) all errors and omissions in connection with the Lender’s administration of all indebtedness guaranteed by this Section 2.6.5, except errors and omissions resulting from acts of bad faith;
(vii) any right or claim of right to cause a marshalling of the assets of any one or more of the other Borrowers;
(viii) any act or omission of the Lender which changes the scope of the risk as guarantor hereunder; and
(ix) all other notices and demands otherwise required by law which the Borrower may lawfully waive. The “Maximum Guaranteed Amount” Within ten (10) days following any request of the Lender so to do, each Borrower will furnish the Lender and such other persons as the Lender may direct with a written certificate, duly acknowledged stating in detail whether or not any credits, offsets or defenses exist with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorsSection 2.6.5.
Appears in 1 contract
Guaranty. (a) Each Guarantor hereby Guarantying Party (other than the Borrowers) absolutely and unconditionally, jointly and severally, with each other and any subsequent Guarantying Party (other than any Borrower), guarantees and agrees to the Administrative Agent, be liable for the benefit of the Lender Group, the full and prompt final payment and performance by each Borrower when due of all of the Obligations (as such term is defined in the Loan Agreement) of each such Borrower, other than any such Obligation described in the following sentence. Each Guarantying Party (other than the Company) absolutely and unconditionally, jointly and severally, with each other and any subsequent Guarantying Party (other than the Company) guarantees and agrees to be liable for the full payment and performance by the Company when due of all of the Obligations of the Company. The Obligations guaranteed pursuant to this Section 1 by any Guarantying Party are referred to herein as the “Guaranteed Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing ” of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromGuarantying Party.
(b) Regardless This Guaranty is a guarantee of whether payment and not of collection. Each Guarantying Party agrees that neither Agent nor any proposed guarantor other Secured Party need attempt to collect any Guaranteed Obligations from any Borrower, any other Guarantying Party or any other Person shall become in Obligor or to realize upon any other way responsible collateral, but may require any Guarantying Party to make immediate payment of all of its Guaranteed Obligations to Agent when due, whether by maturity, acceleration or otherwise, or at any time thereafter. Subject to the Lender GroupIntercreditor Agreement, or Agent and Secured Parties may apply any of them, for or amounts received in respect of the Guaranteed Obligations to any of the Guaranteed Obligations, in whole or in part (including attorneys’ fees and legal expenses incurred by Agent or any part thereof, and regardless of whether or not any Person now or hereafter responsible Secured Party with respect thereto to the Lender Groupextent reimbursable by Borrowers or the Company under the Loan Agreement or otherwise chargeable to Borrowers or the Guarantying Parties in accordance with the terms thereof) in accordance with the Loan Agreement and, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or if not provided in the case of Letter of Credit ObligationsLoan Agreement, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminatedsuch order as Agent may elect.
(c) Each Guarantor absolutely(i) Payment by Guarantying Parties shall be made to Agent at the office of Agent from time to time promptly after demand as Guaranteed Obligations become due.
(ii) Except as permitted by Section 6.13(h) of the Loan Agreement and subject to Section 6.8(a) of the Loan Agreement, unconditionally and irrevocably waives any and Guarantying Parties shall make all right payments to assert any defense (other than Agent on the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-offGuaranteed Obligations without setoff, counterclaim or cross-claim of deduction.
(iii) One or more successive or concurrent actions may be brought hereon against any nature whatsoever with respect to this Guaranty or Guarantying Party either in the obligations of the Guarantors under this Guaranty or the obligations of same action in which any Borrower, Guarantor, other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent Guarantying Party or any other member of the Lender Group to collect the Obligations Obligor is sued or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guarantyin separate actions.
(d) The Lender GroupNotwithstanding anything to the contrary contained herein, or the amount of the obligations payable by any of them, may from time to time, without exonerating or releasing any Guarantor in any way Guarantying Party under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any the aggregate amount of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the its Guaranteed Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by unless a court of competent jurisdiction in adjudicates such Guarantying Party’s obligations to be invalid, avoidable or unenforceable for any action or proceeding involving reason (including, without limitation, because of any applicable state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws federal law relating to fraudulent conveyances or transfers), in which case the insolvency amount of debtorsGuaranteed Obligations payable by such Guarantying Party hereunder shall be limited to the maximum amount that could be guaranteed by such Guarantying Party without rendering such Guarantying Party’s obligations under this Guaranty invalid, avoidable or unenforceable under such applicable law.
Appears in 1 contract
Guaranty. (a) Each The Guarantor hereby (i) fully, irrevocably and unconditionally guarantees the due and punctual payment of any and all obligations of the LD Subsidiary owed to the Administrative Agent, for Beneficiary under the benefit Agreement and (ii) acknowledges that any and all amounts payable by the Guarantor hereunder shall be pari passu with all other senior unsecured debt of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromGuarantor.
(b) Regardless This is a continuing Guaranty and a guaranty of whether payment (not merely of collection), and it shall remain in full force and effect until all amounts payable by the LD Subsidiary to the Beneficiary under the Agreement have been validly, finally and irrevocably paid in full and shall not be affected in any proposed guarantor way by the absence of any action to obtain those amounts from the LD Subsidiary or any other Person shall become in guarantor or surety or to proceed against any other way responsible to security provided by the Lender Group, LD Subsidiary or any of them, for other person or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminatedentity.
(c) Each The Guarantor absolutelyhereby agrees that it shall not be necessary, unconditionally as a condition precedent to enforcement of this Guaranty, that a suit first be instituted against the LD Subsidiary or that any rights or remedies first be exhausted against the LD Subsidiary and irrevocably the Guarantor hereby waives any diligence, presentment, demand on the LD Subsidiary for payment or otherwise, filing of claims, requirement of a prior proceeding against the LD Subsidiary and all right to assert any defense (other than protest or notice, except as may be provided for in the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever Agreement with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought amounts payable by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this GuarantyLD Subsidiary.
(d) The Lender GroupGuarantor agrees that, except by the complete and irrevocable payment of all amounts payable by the LD Subsidiary under the Agreement, its obligations under this Guaranty shall be unconditional and this Guaranty shall not be subject to any defense of set-off, counterclaim, recoupment or termination or discharge whatsoever by reason of the invalidity, illegality or unenforceability of any obligations 1 = 1 " " 117793493\V-3 under this Guaranty or any other defense that constitutes a legal or equitable discharge or defense of thema guarantor or surety in its capacity as such irrespective of the existence of any bankruptcy, may from time to timeinsolvency, reorganization or similar proceedings involving the LD Subsidiary or by any other circumstance, including, without exonerating or releasing any Guarantor in any way under this Guaranty, limitation (i) take such further assertions of amendment, waivers or other security forbearance affecting the Agreement or securities for the Obligations or any part thereof as they may deem proper, or related collateral; (ii) release, discharge, abandon the LD Subsidiary’s lack of authorization to enter into the Agreement or otherwise deal with its disability or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or bankruptcy; (iii) amend, modify, extend, accelerate or waive in any manner any incomplete performance of the provisions, terms, or conditions Agreement; (iv) delay by the Beneficiary in making a claim; (v) lack of complete disclosure of matters relevant to the Loan Documents, all as they may consider expedient or appropriate in their sole Guarantor; and absolute discretion. Without limiting (vi) failure to notify the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in If at any time payment under the nature Agreement is rescinded or terms must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Obligations LD Subsidiary or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such the Guarantor’s undertakings obligations hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure with respect to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and payment shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements reinstated upon such restoration or waiversreturn being made.
(f) The Lender GroupSo long as any amount payable by the LD Subsidiary in connection with the Agreement is overdue and unpaid, or the Guarantor shall not exercise any right of them, may, without demand or notice of any kind upon or to any Guarantor, subrogation. If at any time or from time to time when any amount shall be due is overdue and payable hereunder by unpaid the Guarantor receives any Guarantor, if Borrowers shall not have timely paid amount as a result of any action against the LD Subsidiary or any of the Obligations (its property or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts assets or moneys otherwise for or on account of any payment made by the Guarantor in under this Guaranty, the possession of any member of the Lender Group or under their respective control for any purpose. If and Guarantor shall forthwith pay that amount received by it, to the extent that necessary to satisfy any Guarantor makes any payment such amount overdue and unpaid, to the Administrative Agent or any other Person pursuant Beneficiary, to or in respect of this Guaranty, any claim which such Guarantor may have be credited and applied against Borrowers the amount so payable by reason thereof shall be subject the LD Subsidiary and subordinate until payment is made to the prior payment Beneficiary the Guarantor shall hold such amounts in full of trust for the Obligations to the satisfaction of the Lender GroupBeneficiary.
(g) The creation If the LD Subsidiary merges or existence from time consolidates with or into another entity, loses its separate legal identity or ceases to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess ofexist, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect Guarantor shall nonetheless continue to any Guarantor, shall mean be liable for the maximum amount which could be paid payment of all amounts payable by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating the LD Subsidiary under the Agreement to the insolvency of debtorsextent such amounts are not paid when due by the LD Subsidiary.
Appears in 1 contract
Sources: Guaranty (loanDepot, Inc.)
Guaranty. Each Guarantor, jointly and severally, hereby absolutely, unconditionally, and irrevocably:
(a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt punctual payment when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand, or otherwise, of all Obligations of Georgia-Pacific and each other Loan Party (other than such Guarantor) now or hereafter existing under the Credit Agreement and each other Loan Document to which it is or may become a party, whether for principal, interest, fees, expenses, or otherwise (including all such amounts which would become due but for the operation of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes automatic stay under Section 362(a) of the United States Bankruptcy Code or is an allowed claim in such proceedingCode, 11 U.S.C. 362(a)), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by lawoperation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, through an attorney-at-law, or under advice therefrom.11 U.S.C. 502(b) and 506(b)); and
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, indemnifies and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares holds harmless and agrees that this Guaranty shall be a joint to reimburse the Administrative Agent and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives each Lender for any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), setout-off, counterclaim or crossof-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party pocket costs and expenses (including Borrowers) relating to this Guaranty or the obligations out-of-pocket expenses and reasonable fees of any counsel and the allocated cost of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought in-house counsel retained by the Administrative Agent or such Lender) incurred by the Administrative Agent or such Lender in preserving and enforcing any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors rights under this Guaranty.
(d) The Lender Group; provided, or any however, that each Guarantor shall be liable under this Guaranty for the maximum amount of them, may from time to time, such liability that can be hereby incurred without exonerating or releasing any Guarantor in any way under rendering this Guaranty, (i) take as it relates to such further or other security or securities for the Obligations or any part thereof as they may deem properGuarantor, voidable under applicable law relating to fraudulent obligations, fraudulent conveyance, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangementsfraudulent transfer, and realize upon not for any security for the Obligations whengreater amount. This Guaranty constitutes a guaranty of payment when due and not merely of collection nor of performance, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each each Guarantor acknowledges and specifically agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole necessary or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent required that any Guarantor makes any payment to the Administrative Agent or any Lender exercise any right, assert any claim or demand, or enforce any remedy whatsoever against Georgia-Pacific, any other Loan Party, or any other Person pursuant to before or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate as a condition to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention obligations of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorshereunder.
Appears in 1 contract
Guaranty. Each Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably, as primary obligor and not merely as surety:
(a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt punctual payment when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, of all Obligations of the Borrowers (such Obligations, including any the “Guaranteed Obligations”) now or hereafter existing, whether for principal, interest therein (including interest as accruing at the then applicable rate provided in this Agreement, accruing the Credit Agreement after the filing occurrence and continuance of a petition initiating any Insolvency ProceedingsDefault, whether or not a claim for post-filing or post-petition interest is allowed under applicable Law following the institution of a proceeding under any Debtor Relief Law), reasonable out-of-pocket fees, reimbursement obligations with respect to letters of credit or otherwise, reasonable out-of-pocket expenses, indemnities, or otherwise (including all such interest accrues or is recoverable against Borrowers after amounts which would become due but for the filing of such petition for purposes operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code or is an allowed claim in such proceedingCode, 11 U.S.C. §362(a), plus and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C. §502(b) and §506(b) or any similar provision under any other Debtor Relief Law the effect of which is to automatically prohibit a creditor from enforcing its rights against a debtor or its assets); and
(b) indemnifies and holds harmless each Lender Party for any and all reasonable out-of-pocket costs and expenses (including reasonable out-of-pocket attorneys’ fees and expenses if the obligations represented expenses) incurred by such Lender Party in enforcing any rights under this Guaranty; provided that (i) each Guarantor shall only be liable under this Guaranty are collected by lawfor the maximum amount of such liability that can be hereby incurred without rendering this Guaranty, through an attorney-at-lawas it relates to such Guarantor, voidable under applicable Law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount and (ii) the foregoing clause (i) is intended solely to preserve the rights of the Lender Parties to the maximum extent not subject to avoidance under advice therefrom.
(b) Regardless of whether any proposed guarantor applicable Law, and no Guarantor or any other Person shall become in have any other way responsible to the Lender Group, right or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether claim under this Guaranty or otherwiseparagraph with respect to such maximum amount, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, except to the extent of its obligations hereunder, or a defense necessary so that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating Guarantor hereunder shall not be rendered voidable under applicable Law. Each Guarantor agrees that the Guaranteed Obligations may at any time and from time to time exceed the maximum amount of liability that can be incurred by each Guarantor without impairing this Guaranty or affecting the obligations of any rights and remedies of the Guarantors under Lender Parties hereunder; provided that nothing in this sentence shall be construed to increase any Guarantor’s obligations hereunder beyond the maximum amount of liability that can be incurred by such Guarantor. This Guaranty constitutes a guaranty of payment when due and not of collection, and each Guarantor specifically agrees that it shall not be necessary or otherwise with respect to the Obligations in required that any action Lender Party exercise any right, assert any claim or proceeding brought by the Administrative Agent demand or enforce any remedy whatsoever against any Loan Party or any other member of Person before or as a condition to the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Parent Guaranty (Amerigon Inc)
Guaranty. (a) Each Guarantor hereby guarantees Guarantor, irrevocably and unconditionally guarantees, as primary obligor, and not merely as surety, the due and punctual payment in full of the outstanding principal amount of the Loans payable by the Borrower to the Administrative AgentFinancing Parties under the Credit Agreement (collectively, for the benefit “Guaranteed Principal Obligations”) when the same shall become due, whether at stated maturity, by acceleration, demand or otherwise, provided, however that the Guarantor shall not be required to make payments in respect of the Lender Group, the full and prompt payment Guaranteed Principal Obligations in excess of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Limited Principal Guaranty are collected by law, through an attorney-at-law, or under advice therefromCap.
(b) Regardless Guarantor, irrevocably and unconditionally guarantees, as primary obligor, and not merely as surety, the due and punctual payment in full of whether any proposed guarantor or any other Person the Operating Expenses payable by the Borrower pursuant to Section 5.01(b) of the Credit Agreement (collectively, the “Guaranteed Operating Expenses Obligations”) when the same shall become in any other way responsible due and payable, provided, however that the Guarantor shall not be required to the Lender Group, or any of them, for or make payments in respect of the Guaranteed Operating Expenses Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) excess of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminatedLimited Operating Expenses Guaranty Cap.
(c) Each Guarantor absolutelyagrees that whenever, unconditionally and irrevocably waives at any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereundertime, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or shall make any compositions or arrangements, and realize upon any security for payment to the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms Financing Parties on account of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, it will notify the Financing Parties in writing that such payment is made under this Guaranty for such purpose. No payment or payments made by any other person or received or collected by the Financing Parties from any other person by virtue of any action or proceeding or any right of counterclaim set-off or offset of any nature appropriation or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantorapplication, at any time or from time to time when any amount time, in reduction of or in payment of the Guaranteed Principal Obligations or Guaranteed Operating Expenses Obligations shall be due deemed to modify, reduce, release or otherwise affect the liability of Guarantor hereunder.
(d) This Guarantee is a guarantee of payment, performance and payable hereunder compliance and not just of collectibility and is in no way conditioned or contingent upon any attempt to collect from or enforce performance or compliance by Borrower, or any Guarantorother person or upon any other event, if Borrowers shall not have timely paid contingency or circumstance whatsoever. If, for any reason whatsoever, any of the Guaranteed Principal Obligations (or Guaranteed Operating Expenses Obligations shall not be paid or performed when due, then Guarantor, without demand, presentment, protest or notice of any kind, will forthwith pay or cause to be paid in full the entire amount of such Guaranteed Principal Obligations or such Guaranteed Operating Expenses Obligations, as applicable, at the place specified in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in perform or comply with the possession of any member of same or cause the Lender Group same to be performed or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Groupcomplied with.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. (a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any guaranties the full, complete and prompt payment and performance of all right of the Obligations as primary obligor and not merely as surety, whether by acceleration or otherwise. For certainty, the term "Obligations" as used in this Guaranty means the Debt and the OTS Debts, collectively referred to assert any defense as the Liabilities, together with all existing and future loans, advances, debts, obligations and liabilities of OTS to Allezoe (other than the defense including interest which is or will be payable by OTS), direct and indirect, contingent and absolute, however arising or created, whether joint, several or joint and several, acquired by assignment, purchase or otherwise. This Guaranty is a guaranty of payment in cash in fulland not of collection. Therefore, Allezoe can insist that Guarantor pay immediately, and Allezoe is not required to the extent of its obligations hereunderattempt to collect first from OTS, any collateral, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or other person liable for the Obligations. The obligations of the Guarantors Guarantor under this Guaranty are unconditional and absolute, regardless of the unenforceability of any provision of any agreement between OTS and Allezoe, or the obligations existence of any defense, setoff or counterclaim which OTS may assert. Guarantor is jointly and severally liable with any other Person guarantor of the Obligations. If Allezoe 2. Action Regarding OTS. Allezoe can take any action against OTS, any collateral, or party (including Borrowers) relating to this Guaranty or the obligations of any other person liable for any of the Guarantors under this Guaranty Obligations it deems appropriate without the consent or otherwise with respect to approval of Guarantor. Allezoe can release OTS or anyone else from the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereofObligations, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, either in whole or in part, by or release any action collateral, and need not perfect a security interest in any collateral. Allezoe does not have to exercise any rights that they have against OTS or thing which mightanyone else, but for this paragraph or make any effort to realize on any collateral or right of set-off before enforcing its rights under this Guaranty. If OTS requests additional loans or any other benefit, Allezoe may grant it and Allezoe may grant renewals, extensions, modifications and amendments of the Obligations and otherwise deal with OTS or any other person as Allezoe sees fit and as if this Guaranty were not in effect. Guarantor's obligations under this Guaranty will not be deemed a legal released or equitable discharge of a surety affected by (a) any act or guarantor, or by reason of any waiver, omission of Allezoe, (b) the Lender Groupvoluntary or involuntary liquidation, sale or other disposition of all or substantially all of the assets of OTS, or any of themreceivership, insolvency, bankruptcy, reorganization, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, other similar proceedings affecting OTS or any of them, whether or not such action or failure to act varies or increases the risk oftheir assets, or affects (c) any change in the rights composition or remedies ofstructure of OTS or Guarantor, such Guarantor including a merger or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or consolidation with any other guarantor person or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waiversentity.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. (a) Each The Guarantor hereby unconditionally and irrevocably guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment of when due, whether at stated maturity, by acceleration or otherwise, of, and the performance of, (a) the Obligations, including any interest therein (including interest as provided in this Agreementwhether now or hereafter existing and whether for principal, accruing after the filing of a petition initiating any Insolvency Proceedingsinterest, whether fees, expenses or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding)otherwise, plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless any and all reasonable out-of-pocket expenses (including, without limitation, reasonable counsel fees and expenses) incurred by any of whether the Guarantied Parties in enforcing any proposed guarantor rights under this Guaranty and (c) all present and future amounts that would become due but for the operation of Section 502 or 506 or any other Person shall become in provision of Title 11 of the United States Code and all present and future accrued and unpaid interest (including, without limitation, all post-petition interest if the Borrower or any other way responsible to guarantor (the Lender Group, Borrower or any other guarantor being herein referred to as an "Obligor") voluntarily or involuntarily becomes subject to any applicable liquidation, conservatorship, bankruptcy, moratorium, rearrangement, insolvency, reorganization or similar debtor relief Laws affecting the rights of themcreditors generally from time to time in effect, for or collectively, the "Debtor Relief Laws") (the items set forth in respect of the Obligations or any part thereofclauses (a), and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligationsb) and the Revolving Loan Commitment shall have been terminated.
(c) Each immediately above being herein referred to as the "Guarantied Obligations"). Upon failure of the Borrower to pay any of the Guarantied Obligations when due (whether at stated maturity, by acceleration or otherwise), the Guarantor absolutelyhereby further agrees to pay the same, unconditionally and irrevocably waives the Guarantor will promptly pay the same, without any and all right to assert demand or notice whatsoever, including without limitation, any defense (other than the defense of payment in cash in full, notice having been given to the extent Guarantor of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim either the acceptance by the Guarantied Parties of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty creation or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations incurrence of any of the Guarantors under this Obligation. This Guaranty or otherwise with respect is an absolute guaranty of payment and performance and not a guaranty of collection, meaning that it is not necessary for the Guarantied Parties, in order to the Obligations in any action or proceeding brought enforce payment by the Administrative Agent Guarantor, first or contemporaneously to accelerate payment of any other member of the Lender Group Guarantied Obligations, to collect the Obligations institute suit or exhaust any portion thereofrights against any Obligor, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or Rights against any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretioncollateral. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in In any action or proceeding involving any state corporate Law or Federal bankruptcyany Debtor Relief Law (collectively, insolvencythe "Fraudulent Transfer Laws") if the obligations of the Guarantor hereunder would otherwise, reorganizationin each case after giving effect to all other liabilities of the Guarantor, moratoriumcontingent or otherwise, fraudulent conveyance that are relevant under the Fraudulent Transfer Laws (specifically excluding, however, any liabilities of the Guarantor in respect of intercompany indebtedness to the Borrower, other Affiliates of the Borrower or other similar laws relating Obligors to the insolvency extent that such indebtedness would be discharged in an amount equal to the amount paid by the Guarantor hereunder) and after giving effect as assets to the value (as determined under the applicable provisions of debtorsFraudulent Transfer Laws) of any agreement providing for an equitable allocation among the Guarantor and other Obligors of obligations arising under guaranties by such parties, be held or determined to be void, invalid or unenforceable or subordinated to the claims of any other creditors, on account of the amount of its liability under this Guaranty, then, notwithstanding any other provision hereof to the contrary, the amount of such liability shall, without any further action by the Guarantor, any Bank, the Agent or any other Person, be automatically limited and reduced to the highest amount that is valid and enforceable and not subordinated to the claims of other creditors as determined in such action or proceeding.
Appears in 1 contract
Guaranty. (a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, Agreement accruing after the filing of a petition initiating any Insolvency Proceedingsinsolvency proceedings, whether or not such interest accrues or is recoverable against Borrowers the Borrower after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred and five percent (105%) of the Letter of Credit ObligationsObligations or supported by one or more Backup Letters of Credit) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowersthe Borrower) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any the Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers the Borrower shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the including any Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers the Borrower by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. (a) Each The Guarantor hereby (i) fully, irrevocably and unconditionally guarantees the due and punctual payment of any and all Obligations (as defined in the relevant Repurchase Agreement) of the Seller owed to the Administrative Agent, for Buyer under each Repurchase Agreement and (ii) acknowledges that any and all amounts payable by the benefit Guarantor hereunder shall be pari passu with all other senior unsecured debt of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromGuarantor.
(b) Regardless The Guarantor further agrees to pay any and all expenses (including, without limitation, all reasonable and documented fees and disbursements of whether any proposed guarantor counsel, which with respect to entering into this Guaranty and each other Program Agreement shall not exceed the Legal Expense Cap), which may be paid or any other Person shall become incurred by the Buyer in any other way responsible to the Lender Groupenforcing, or any obtaining advice of them, for or counsel in respect of, any rights with respect to, or LEGAL02/43882202v61 collecting, any or all of the Obligations or and/or enforcing any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Grouprights with respect to, or any of themcollecting against, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(c) This is a continuing Guaranty and a guaranty of payment (not merely of collection), and it shall remain in full force and effect until all amounts payable by the Seller to the Buyer under each Repurchase Agreement have been validly, finally and irrevocably paid in full and shall not be affected in any way by the absence of any action to obtain those amounts from the Seller or any other guarantor or surety or to proceed against any other security provided by the Seller or any other person or entity.
(d) The Lender GroupGuarantor hereby agrees that it shall not be necessary, or any as a condition precedent to enforcement of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further that a suit first be instituted against the Seller or other security that any rights or securities remedies first be exhausted against the Seller and the Guarantor hereby waives diligence, presentment, demand on the Seller for payment or otherwise, filing of claims, requirement of a prior proceeding against the Obligations Seller and protest or any part thereof notice, except as they may deem proper, or (ii) release, discharge, abandon or otherwise deal be provided for in each Repurchase Agreement with or fail respect to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held amounts payable by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedientSeller.
(e) Each The Guarantor acknowledges agrees that, except by the complete and agrees that no change in irrevocable payment of all amounts payable by the nature or terms of the Obligations or any of the Loan DocumentsSeller under each Repurchase Agreement, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), its obligations under this Guaranty shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, be unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be releasedsubject to any defense of set-off, in whole counterclaim, recoupment or in parttermination or discharge whatsoever by reason of the invalidity, by illegality or unenforceability of any action obligations under this Guaranty or thing which might, but for this paragraph of this Guaranty, be deemed any other defense that constitutes a legal or equitable discharge or defense of a guarantor or surety in its capacity as such irrespective of the existence of any bankruptcy, insolvency, reorganization or guarantor, similar proceedings involving the Seller or by reason any other circumstance, including, without limitation (i) assertions of amendment, waivers or forbearance affecting any Repurchase Agreement or the related collateral; (ii) the Seller’s lack of authorization to enter into any Repurchase Agreement or its disability or bankruptcy; (iii) incomplete performance of any waiver, omission Repurchase Agreement; (iv) delay by the Buyer in making a claim; (v) lack of complete disclosure of matters relevant to the Lender Group, or any of them, or their Guarantor; and (vi) failure to proceed promptly or otherwise, or by reason of any action taken or omitted by notify the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waiversGuarantor.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, If at any time payment under any Repurchase Agreement is rescinded or from time must be otherwise restored or returned upon the insolvency, bankruptcy or reorganization of the Seller or the Guarantor or otherwise, the Guarantor’s obligations hereunder with respect to time when any amount such payment shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (reinstated upon such restoration or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Groupreturn being made.
(g) So long as any amount payable by the Seller in connection with any Repurchase Agreement is overdue and unpaid, the Guarantor shall not exercise any right of subrogation. If at any time when any amount is overdue and unpaid the Guarantor receives any amount as a result of any action against the Seller or any of its property or assets or otherwise for or on account of any payment made by the Guarantor under this Guaranty, the Guarantor shall forthwith pay that amount received by it, to the extent necessary to satisfy any such amount overdue and unpaid, to the Buyer, to be credited and applied against the amount so payable by the Seller and until payment is made to the Buyer the Guarantor shall hold such amounts in trust for the Buyer. LEGAL02/43882202v6
(h) If the Seller merges or consolidates with or into another entity, loses its separate legal identity or ceases to exist, the Guarantor shall nonetheless continue to be liable for the payment of all amounts payable by the Seller under each Repurchase Agreement to the extent such amounts are not paid when due by the Seller.
(i) The creation or existence from time Guarantor agrees that upon Guarantor making any payment to time of Obligations in excess the Buyer on account of the amount committed to or outstanding on Guarantor’s liability hereunder, the date of Guarantor will promptly notify the Buyer in writing (which may be by email) that such payment was made under this Guaranty is hereby authorized, without for such purpose. Any such notice shall be sent to any Guarantor, and shall Buyer at the address(es) specified in no way impair or affect this Guaranty or the rights Section 11.05 of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorsrelevant Repurchase Agreement.
Appears in 1 contract
Sources: Guaranty (loanDepot, Inc.)
Guaranty. (a) Each Guarantor hereby guarantees to jointly and severally with the Administrative Agentother Guarantors guarantees, for the benefit of the Lender Groupas a primary obligor and not merely as a surety, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Groupand their respective successors and assigns, the prompt payment in full when due (whether at stated maturity, by required prepayment, declaration, demand, by acceleration or any of them, for or in respect otherwise) of the Obligations principal of and interest (including any interest, fees, costs or charges that would accrue but for the provisions of (i) Title 11 of the United States Code after any part thereofbankruptcy or insolvency petition under Title 11 of the United States Code and (ii) any other Debtor Relief Laws) on the Loan made by the Lender to the Borrower, and regardless of whether or not any Person now or hereafter responsible all other obligations from time to time owing to the Lender Group, or by any of them, for the Obligations or any part thereof, whether Loan Party under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until Note (such obligations being herein collectively called the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit “Guaranteed Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g”)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e)the Guaranteed Obligations shall include any such indebtedness, it is understood that the Lender Groupobligations, and liabilities, or portion thereof, which may be or hereafter become unenforceable or compromised or shall be an allowed or disallowed claim under any of themproceeding or case commenced by or against the Borrower under any Debtor Relief Laws. The Guarantors hereby jointly and severally agree that if the Borrower or other Guarantor(s) shall fail to pay in full when due (whether at stated maturity, may, without exonerating by acceleration or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(eotherwise) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan DocumentsGuaranteed Obligations, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and will promptly pay the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, same in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, maycash, without any demand or notice of any kind upon or to any Guarantorwhatsoever, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or that in the case of Letter any extension of Credit time of payment or renewal of any of the Guaranteed Obligations, secured through delivery of cash collateral the same will be promptly paid in an amount equal to one hundred five percent full when due (105%whether at extended maturity, by acceleration or otherwise) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts the terms of such extension or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Grouprenewal.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Unsecured Promissory Note
Guaranty. (a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit In recognition of the Lender Groupdirect and indirect benefits to be received by Guarantors from the proceeds of the Advances, and by virtue of the financial accommodations to be made to Borrower, each of the Guarantors, jointly and severally, hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as a surety the full and prompt payment when due, whether upon maturity, acceleration, or otherwise, of all of the Guarantied Obligations, including . If any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes all of the Bankruptcy Code or is an allowed claim in such proceeding)Obligations becomes due and payable, plus reasonable attorneys’ fees each of the Guarantors, unconditionally and expenses if irrevocably, and without the obligations represented by this Guaranty are collected by lawneed for demand, through an attorney-at-lawprotest, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become notice or formality, promises to pay such indebtedness to Secured Party, together with any and all expenses that may be incurred by Secured Party, in any other way responsible to the Lender Groupdemanding, enforcing, or collecting any of them, the Guarantied Obligations (including the enforcement of any collateral for or in respect of the such Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, collateral for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty). If claim is ever made upon Secured Party, for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Obligations and Secured Party repays all or part of said amount by reason of (i) any judgment, decree, or order of any court or administrative body having jurisdiction over such payee or any of its property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including Borrower or any Guarantor), then and in each such event, each of the Guarantors agrees that any such judgment, decree, order, settlement, or compromise shall be binding upon the Guarantors, notwithstanding any revocation (or purported revocation) of this Guaranty or other instrument evidencing any liability of any Grantor, and the Guarantors shall be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) Additionally, each of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the Obligations to Secured Party, and irrevocably and unconditionally promises to pay such indebtedness to Secured Party, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United States.
(c) The liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other guaranty of the Obligations, whether executed by any other Guarantor or by any other Person, and the liability of each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking, (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Grantor, (iii) any payment made to Secured Party on account of the Obligations which Secured Party repays to any Grantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, or (iv) any action or inaction by Secured Party, or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Obligations or of any security therefor.
(d) This Guaranty includes all present and future Guarantied Obligations including any under transactions continuing, compromising, extending, increasing, modifying, releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Secured Party, (ii) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Secured Party of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of Secured Party in existence on the date of such revocation, (iv) no payment by any Guarantor, Borrower, or from any other source, prior to the date of Secured Party’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Secured Party and its successors, transferees, or assigns.
(e) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of any other Guarantor or Grantor or any other Person and a separate action or party actions may be brought and prosecuted against one or more of the Guarantors whether or not action is brought against any other Guarantor or Grantor or any other Person and whether or not any other Guarantor or Grantor or any other Person be joined in any such action or actions. Each of the Guarantors waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Grantor or other circumstance which operates to toll any statute of limitations as to any Grantor shall operate to toll the statute of limitations as to each of the Guarantors.
(f) Each of the Guarantors authorizes Secured Party without notice or demand, and without affecting or impairing its liability hereunder, from time to time to:
(i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Obligations (including Borrowersany increase or decrease in the principal amount thereof or the rate of interest or fees thereon); or (B) relating to any security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Obligations as so changed, extended, renewed, or altered;
(ii) take and hold security for the payment of the Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Obligations or any of the Guarantied Obligations (including any of the obligations of all or any of the Guarantors under this Guaranty Guaranty) incurred directly or otherwise with indirectly in respect to the Obligations in any action thereof or proceeding brought by the Administrative Agent hereof, or any offset on account thereof;
(iii) exercise or refrain from exercising any rights against any Grantor;
(iv) release or substitute any one or more endorsers, guarantors, any Grantor, or other member obligors;
(v) settle or compromise any of the Lender Group to collect the Obligations Obligations, any security therefor, or any portion thereof, or to enforce the obligations liability (including any of those of any of the Guarantors under this Guaranty.
(d) The Lender Groupincurred directly or indirectly in respect thereof or hereof, or any and may subordinate the payment of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations all or any part thereof as they may deem proper, to the payment of any liability (whether due or not) of any Grantor to its creditors;
(iivi) release, discharge, abandon apply any sums by whomever paid or otherwise deal with however realized to any liability or fail liabilities of any Grantor to deal with Secured Party regardless of what liability or liabilities of such Grantor remain unpaid;
(vii) consent to or waive any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Groupbreach of, or any of themact, omission, or (iii) default under, this Agreement or any other Loan Document or otherwise amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, supplement this Agreement or any other Loan Document; or
(viii) take any other action that could, under otherwise applicable principles of them, may, without exonerating or releasing any Guarantorlaw, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related rise to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety one or guarantormore of the Guarantors from all or part of its liabilities under this Guaranty.
(g) It is not necessary for Secured Party to inquire into the capacity or powers of any of the Guarantors or the officers, directors, partners or agents acting or purporting to act on their behalf, and any Obligations made or created in reliance upon the professed exercise of such powers shall be Guarantied hereunder.
(h) Each Guarantor jointly and severally guarantees that the Guarantied Obligations will be paid strictly in accordance with the terms of the Loan Documents, regardless of any law, regulation, or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of Secured Party with respect thereto. The obligations of each Guarantor under this Guaranty are independent of the Guarantied Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any such action or actions. The liability of each Guarantor under this Guaranty shall be absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any defense it may now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(ii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guarantied Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any increase in the Guarantied Obligations resulting from the extension of additional credit;
(iii) any taking, exchange, release, or non-perfection of any Lien in and to any Collateral, or any taking, release, amendment, waiver of, or consent to departure from any other guaranty, for all or any of the Guarantied Obligations;
(iv) the existence of any claim, set-off, defense, or other right that any Guarantor may have at any time against any Person, including Secured Party;
(v) any defense, set-off, counterclaim, or claim, of any kind or nature, arising directly or indirectly from the present or future lack of perfection, sufficiency, validity, or enforceability of the Guarantied Obligations or any security therefor;
(vi) any right or defense arising by reason of any waiverclaim or defense based upon an election of remedies by Secured Party including any defense based upon an impairment or elimination of such Guarantor’s rights of subrogation, omission reimbursement, contribution, or indemnity of such Guarantor against any other Grantor or any guarantors or sureties;
(vii) any change, restructuring, or termination of the Lender Groupcorporate, limited liability company, or partnership structure or existence of any of themGrantor; or
(viii) any other circumstance that might otherwise constitute a defense available to, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk a discharge of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, Grantor or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Guaranty and Security Agreement (Dgse Companies Inc)
Guaranty. (a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, Guarantors unconditionally and irrevocably guarantees the full due and prompt punctual payment and performance by the Borrower of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) . Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to further agrees that the Obligations in any action may be extended or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be releasedrenewed, in whole or in part, without notice to or further assent from it, and it will remain bound upon this guaranty notwithstanding any extension or renewal of any of the Obligations. The Obligations of the Guarantors shall be joint and several.
(b) Each of the Guarantors waives presentation to, demand for payment from and protest to the Borrower or any other Guarantor, and also waives notice of protest for nonpayment. The Obligations of the Guarantors hereunder shall not be affected by (i) the failure of the Agent or a DIP Lender to assert any action claim or thing which might, but for this paragraph demand or to enforce any right or remedy against the borrower or any other Guarantor under the provisions of this Guaranty, be deemed a legal Agreement or equitable discharge of a surety any other Loan Document or guarantor, otherwise; (ii) any extension or by reason renewal of any provision hereof or thereof; (iii) any rescission, waiver, omission compromise, acceleration, amendment or modification of any of the Lender Groupterms or provisions of any of the Loan Documents; (iv) the release, exchange, waiver or foreclosure of any security held by the Agent for the Obligations or any of them; (v) the failure of the Agent or a DIP Lender to exercise any right or remedy against any other Guarantor; or (vi) the release or substitution of the Borrower or any other Guarantor.
(c) Each of the Guarantors further agrees that this guaranty constitutes a guaranty of performance and of payment when due and not just of collection, and waives any right to require that any resort be had by the Agent or a DIP Lender to any security held for payment of the Obligations or to any balance of any deposit, account or credit on the books of the Agent or a DIP Lender in favor of the Borrower or any other Guarantor, or their to any other Person.
(d) Each of the Guarantors hereby waives any defense that it might have based on a failure to proceed promptly remain informed of the financial condition of the Borrower and of any other Guarantor and any circumstances affecting the ability of the Borrower to perform under this Agreement.
(e) Each Guarantor's guaranty shall not be affected by the genuineness, validity, regularity or otherwiseenforceability of the Obligations or any other instrument evidencing any Obligations, or by reason the existence, validity, enforceability, perfection, or extent of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor collateral therefor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any circumstance relating to the Obligations that might otherwise constitute a defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waiversthis Guaranty.
(f) The Lender GroupSubject to the provisions of Section 7.01, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be the Obligations becoming due and payable hereunder (by any Guarantoracceleration or otherwise), if Borrowers the DIP Lenders shall not have timely paid any be entitled to immediate payment of such Obligations by the Guarantors upon written demand by the Agent, without further application to or order of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupBankruptcy Court.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Lodgian Inc)
Guaranty. (a) Each Guarantor hereby guarantees to absolutely, unconditionally and irrevocably guarantees, jointly with the Administrative Agentother Guarantors and severally, for the benefit of the Lender Groupas primary obligor and not merely as surety, the full and prompt punctual payment and performance when due and in the currency due, whether at stated maturity or earlier, by reason of acceleration, mandatory prepayment or otherwise in accordance herewith or any other Loan Document, of all of the Guaranteed Obligations, whether or not from time to time reduced or extinguished (other than by reason of the payment thereof) or hereafter increased or incurred, whether or not recovery may be or hereafter may become barred by any statute of limitations, whether or not enforceable as against Borrower, whether now or hereafter existing, and whether due or to become due, including any principal (including therein interest therein that has been capitalized and added to the principal amount of the Loans outstanding in accordance with Section 2.05(d) of the Credit Agreement), interest (including interest as provided in this Agreement, at the contract rate applicable upon default accrued or accruing after the filing commencement of a petition initiating any Insolvency Proceedingsproceeding under the Bankruptcy Code or any applicable provisions of comparable state or foreign law, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this costs of collection. This Guaranty are collected by law, through an attorney-at-law, or under advice therefromconstitutes a guaranty of payment and performance and not merely of collection.
(b) Regardless of whether Each Guarantor further agrees that, if any proposed guarantor payment made by Borrower, a Guarantor, or any other Person shall become in any other way responsible and applied to the Lender GroupGuaranteed Obligations is at any time annulled, avoided, set aside, rescinded, invalidated, declared to be fraudulent or preferential or otherwise required to be refunded or repaid, then, to the extent of such payment or repayment, any such Guarantor’s liability hereunder shall be and remain in full force and effect, as fully as if such payment had never been made. If, prior to any of themthe foregoing, for this Guaranty shall have been cancelled or surrendered, this Guaranty shall be reinstated in full force and effect, and such prior cancellation or surrender shall not diminish, release, discharge, impair or otherwise affect the obligations of such Guarantor in respect of the Obligations amount of such payment. Any transfer by subrogation which is made as contemplated in Section 7 prior to any such payment or payments shall be (regardless of the terms of such transfer) automatically voided upon the making of any such payment or payments, and all rights so transferred shall thereupon revert to and be vested in the Guaranteed Parties. If either Borrower or any part thereofother Obligor shall for any reason fail to perform promptly any Guaranteed Obligation as and when such Guaranteed Obligation shall become due and, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligationsa payment obligation, secured through delivery of cash collateral in an amount equal to one hundred five percent payable (105%) whether by stated maturity, acceleration or otherwise), each Guarantor will jointly with the other Guarantors and severally forthwith, upon demand by Administrative Agent, on behalf of the Letter Guaranteed Parties, cause such Guaranteed Obligation to be performed or, if specified by Administrative Agent, provide sufficient funds, in such amount and manner as Administrative Agent shall in good faith determine, for the prompt, full and faithful performance of Credit Obligations) and the Revolving Loan Commitment such Guaranteed Obligation by Administrative Agent or such other Person as Administrative Agent shall have been terminateddesignate.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense Any term or provision of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or any other Loan Document to the obligations contrary notwithstanding, the maximum aggregate amount of the Guarantors under Guaranteed Obligations for which any Guarantor shall be liable shall not exceed the maximum amount for which such Guarantor can be liable without rendering this Guaranty or any other Loan Document, as it relates to such Guarantor, subject to avoidance under applicable Law relating to fraudulent conveyance or fraudulent transfer (including Section 548 of the obligations Bankruptcy Code or any applicable provisions of any other Person or party applicable Debtor Relief Law) (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations collectively, “Fraudulent Transfer Laws”), in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, each case after giving effect (i) take to all other liabilities of such further Guarantor, contingent or other security or securities for the Obligations or any part thereof as they may deem properotherwise, or that are relevant under such Fraudulent Transfer Laws and (ii) releaseto the value of assets of such Guarantor (as determined under the applicable provisions of such Fraudulent Transfer Laws) after giving effect to any rights to subrogation, dischargecontribution, abandon reimbursement, indemnity or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter similar rights held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent (A) applicable requirements of the Guarantors and the Lender Group that the covenantsLaw, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements (B) Section 3 of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.or
Appears in 1 contract
Sources: Guaranty
Guaranty. (a) Each Guarantor hereby unconditionally and irrevocably guarantees to the Administrative Agentpunctual payment when due, for the benefit whether at stated maturity, by acceleration or otherwise, of the Lender Group, the full and prompt payment of the all Obligations, including now or hereafter existing under any Loan Document, whether for principal, interest therein (including including, without limitation, all interest as provided in this Agreement, accruing that accrues after the filing commencement of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing proceeding of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor Borrower or any other Person shall become in Credit Party under any other way responsible to the Lender GroupDebtor Relief Laws), fees, commissions, expense reimbursements, indemnifications or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash otherwise (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in fullsuch obligations, to the extent of its obligations hereundernot paid by Borrower, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)the "Guaranteed Obligations"), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under pay any and all circumstancescosts, fees and expenses (including counsel fees and expenses) incurred by Agent and Lenders in enforcing any rights under the guaranty set forth in this Article XIV. Without limiting the generality of the foregoing, each Guarantor agrees Guarantor's liability shall extend to all amounts that until each and every one constitute part of the covenants Guaranteed Obligations and agreements of this Guaranty is fully performed, would be owed by Borrower or any other Credit Party to Agent and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by Lenders under any action or thing which mightLoan document, but for this paragraph of this Guaranty, be deemed a legal the fact that they are unenforceable or equitable discharge of a surety or guarantor, or by reason not allowable due to the existence of any waiver, omission of the Lender Group, or proceeding under any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, Debtor Relief Laws involving Borrower or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waiversCredit Party.
(fb) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention intent of each Guarantor and the Administrative Agent that each Guarantor’s 's maximum obligations hereunder shall bebe up to, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could would not otherwise cause the Guaranteed Obligations to be paid by avoidable or unenforceable against such Guarantor under (i) Section 548 of the Bankruptcy Code (in any case commenced by or against such Guarantor within one (1) year from the date on which any of the Guaranteed Obligations are incurred), (ii) any state fraudulent transfer or fraudulent conveyance act or statute applied in any case or proceeding by virtue of Section 544 of the Bankruptcy Code, or (iii) any law, statute or regulation other than the Bankruptcy Code (including, without rendering this Guaranty void limitation, any receivership, readjustment of debt, dissolution, liquidation or voidable similar debtor relief laws), without limitation, any state fraudulent transfer or fraudulent conveyance act or statute applied in any case or proceeding commenced by or against such Guarantor in any case or proceeding of any nature. (The substantive laws under which the possible avoidance or unenforceability of the Guaranteed Obligations shall be determined in any such case or proceeding shall be referred to herein as the "Avoidance Provisions").
(c) To the extent set forth in subsections (i), (ii), and (iii) of clause (b) above, but only to the extent that the Guaranteed Obligations would otherwise be held subject to avoidance under the Avoidance Provisions, if any Guarantor is not deemed to have received valuable consideration or determined by a court reasonably equivalent value for the Guaranteed Obligations, or if the Guaranteed Obligations would render such Guarantor insolvent, or cause such Guarantor to have incurred debts beyond its ability to pay such debts as they mature, in each case as of competent jurisdiction in the time any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating of the Guaranteed Obligations are deemed to have been incurred under the Avoidance Provisions and after giving effect to the insolvency contribution by such Guarantor, the maximum Guaranteed Obligations for which such Guarantor shall be liable hereunder shall be reduced to that amount which, after giving effect thereto, would not cause the Guaranteed Obligations, as so reduced, to be subject to avoidance under the Avoidance Provisions. This section is intended solely to preserve the rights of debtorsthe Agent and the Lenders, and neither Guarantor nor any other Person shall have any right or claim under this section against the Agent and the Lenders that would not otherwise be available to such person under the Avoidance Provisions.
Appears in 1 contract
Sources: Revolving Credit, Term Loan and Security Agreement (Trover Solutions Inc)
Guaranty. (a) Each The Guarantor hereby absolutely, unconditionally and irrevocably guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment to the Minnesota Power Banks (but not the GRE Banks) of any and all Obligations owing to the Minnesota Power Banks (but not the GRE Banks) as and when due (whether by acceleration or otherwise), howsoever evidenced, arising under or relating to the Credit Documents, whether direct or indirect, absolute or contingent, joint or several, or joint and several and howsoever owned, held or acquired; and the Guarantor further agrees to pay all reasonable expenses, legal and/or otherwise (including court costs and reasonable attorneys' fees), paid or incurred by the Administrative Agent or the Minnesota Power Banks in endeavoring to collect such Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless in enforcing this guaranty in any litigation, bankruptcy or insolvency proceeding or otherwise (collectively, the "Guaranteed Obligations"). Guarantor's guaranty is a continuing, absolute and unconditional guaranty, and shall remain in full force and effect until written notice of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty its discontinuance shall be a joint actually received by the Administrative Agent, and several obligation, shall be a continuing guaranty and shall be operative and binding also until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty Guaranteed Obligations created, existing or committed to before receipt of such notice shall be fully paid. The liability of the obligations of Guarantor hereunder shall in no way be affected or impaired by (and the Administrative Agent or and Minnesota Power Banks are hereby expressly authorized to make from time to time, without notice to anyone) any increase, sale, pledge, surrender, compromise, settlement, release, renewal, extension, indulgence, alteration, substitution, exchange, change in, modification or other Person or party (including Borrowers) relating to this Guaranty or the obligations disposition of any of the Guarantors under this Guaranty Guaranteed Obligations, either express or otherwise with respect to implied, or of any contract or contracts evidencing any thereof, or of any security or Collateral therefor. The liability of the Obligations Guarantor hereunder shall also in no way be affected or impaired by any action or proceeding brought acceptance by the Administrative Agent or any Bank of any security for or other member guarantors upon any of the Lender Group to collect Guaranteed Obligations, or by any failure, neglect or omission on the Obligations part of the Administrative Agent or any portion Bank to realize upon or protect any of the Guaranteed Obligations, or any collateral or security or other guaranty therefor, or to exercise any lien upon or right of appropriation of any moneys, credits or property of the Company possessed by the Administrative Agent and/or the Banks toward the liquidation of the Guaranteed Obligations, or by any application of payments or credits thereon. The Administrative Agent and the Banks shall have the exclusive right to determine how, when and what application of payments and credits, if any, shall be made on the Guaranteed Obligations, or any part thereof. Notwithstanding anything in any Credit Documents to the contrary, in order to hold the Guarantor liable hereunder, there shall be no obligation on the part of the Administrative Agent or the Banks, at any time, to resort for payment to the Company or to any other guaranty (including the GRE Guaranty), or to any other person or corporation, their properties or estate, or resort to any collateral, security, property, Liens or other rights or remedies whatsoever and the Administrative Agent and the Minnesota Power Banks (but not the GRE Banks) shall have the right to enforce this guaranty irrespective of whether or not other proceedings or steps are pending seeking resort to or realization upon or from any of the foregoing. All diligence in collection or protection, and all presentment, demand, protest and/or notice, as to any and everyone, whether or not the Company or the Guarantor or others, of dishonor and of default and of non-payment and of the creation and existence of any and all of the Guaranteed Obligations, and of any security and collateral therefor, and of the acceptance of this guaranty, and of any and all extensions of credit and indulgence, are expressly waived. Until payment of all Guaranteed Obligations has irrevocably been made, the Guarantor hereby irrevocably waives any claim or other rights which it may now or hereafter acquire against the Company that arise from the existence, payment, performance or enforcement of the Guarantor's obligations hereunder, including, without limitation, any right of subrogation, reimbursement, exoneration, contribution, indemnification, or any right to participate in any claim or remedy of the Administrative Agent and the Banks against the Company whether or not such claim, remedy or right arises in equity, or under contract, statute or common law, including, without limitation, the right to take or receive from the Company directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim or other rights. In the case of the dissolution, liquidation, or insolvency (howsoever evidenced) of, or the institution of bankruptcy or receivership proceedings against the Company or the Guarantor or an Event of Default occurs, all of the Guaranteed Obligations then existing shall, at the option of the Administrative Agent or the Minnesota Power Banks (or automatically, in the event of a bankruptcy or receivership proceeding), immediately become due and accrued and payable from the Guarantor. All dividends or other payments received from the Company, or on account of the Company from whatsoever source, shall be taken and applied as payment in gross, and this guaranty shall apply to and secure any ultimate balance that shall remain owing to the Minnesota Power Banks. The Minnesota Power Banks may sell, assign, or transfer all of the Guaranteed Obligations, or any part thereof, or to enforce the obligations grant participations therein, and in that event each and every immediate and successive assignee, transferee, or holder of or participant in all or any part of the Guarantors under Guaranteed Obligations, shall be a beneficiary of this Guaranty.
guaranty, as fully as if such assignee, transferee, holder or participant were herein by name specifically given such rights, powers and benefits. If any payment applied by the Administrative Agent or the Minnesota Power Banks to the Guaranteed Obligations is thereafter set aside, recovered, rescinded or required to be returned for any reason (d) The Lender Groupincluding, without limitation, the bankruptcy, insolvency or reorganization of the Company or any other obligor), the Guaranteed Obligations to which such payment was applied shall for the purposes of themthis guaranty be deemed to have continued in existence, notwithstanding such application, and this guaranty shall be enforceable as to such of the Guaranteed Obligations as fully as if such application had never been made. All payments to be made by the Guarantor hereunder shall be made in the same currency and funds in which the Guaranteed Obligations of the Company are payable at the head office of the Administrative Agent at Denver, Colorado (or at such other place for the account of the Administrative Agent as it may from time to timetime specify to the Guarantor) in immediately available and freely transferable funds at the place of payment, all such payments to be paid without exonerating setoff, counterclaim or releasing reduction and without deduction for, and free from, any and all present or future taxes, levies, imposts, duties, fees, charges, deductions, withholding or liabilities with respect thereto or any restrictions or conditions of any nature. If the Guarantor in is required by law to make any way under this Guaranty, (i) take such further deduction or withholding on account of any tax or other security withholding or securities for deduction from any sum payable by the Obligations Guarantor hereunder, the Guarantor shall pay any such tax or other withholding or deduction and shall pay such additional amount necessary to ensure that, after making any part thereof as they may deem properpayment, deduction or withholding, the Administrative Agent and the Minnesota Power Banks shall receive and retain (iifree of any liability in respect of any payment, deduction or withholding) releasea net sum equal to what it would have received and so retained hereunder had no such deduction, dischargewithholding or payment been required to have been made. The Guarantor waives any and all of its defenses, abandon or otherwise deal with or fail to deal with any Guarantor claims and discharges and those of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender GroupCompany, or any other obligor, pertaining to the Guaranteed Obligations or its obligations hereunder, except the defense of them, or (iii) amend, modify, extend, accelerate or waive discharge by payment in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretionfull. Without limiting the generality of the foregoing, the Guarantor will not assert, plead or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to enforce against the Administrative Agent or any Bank any defense of waiver, release, discharge in bankruptcy, statute of limitations, res judicata, statute of frauds, anti-deficiency statute, fraud, incapacity, minority, usury, illegality or unenforceability which may be available to the Company or any other Person pursuant to or person liable in respect of this Guarantyany of the Guaranteed Obligations, or any claim which setoff available against the Administrative Agent or any Banks to the Company or any such other person, whether or not on account of a related transaction. The Guarantor may have against Borrowers by reason thereof agrees that the Guarantor shall be subject and subordinate to remain liable for any deficiency remaining after foreclosure of any mortgage or security interest securing the prior payment in full Guaranteed Obligations, whether or not the liability of the Obligations Company or any other obligor for such deficiency is discharged pursuant to statute or judicial decision. Without limiting the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the other rights of the Lender Group herein. It is Administrative Agent and the intention Minnesota Power Banks and the obligations of each the Guarantor hereunder, if an Event of Default occurs under the Credit Agreement and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess ofand the Banks are prohibited or stayed by law from accelerating or making demand on the Guaranteed Obligations vis-a-vis the Company, the Maximum Administrative Agent and the Minnesota Power Banks may, by written notice to the Guarantor, declare the full amount of the Guaranteed Amount (as herein defined). The “Maximum Obligations to be immediately due and payable from the Guarantor whether or not such Guaranteed Amount” with respect Obligations has been declared to be or has become immediately due and payable from the Company and without regard to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void constraints on or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating impediments to the insolvency ability of debtorsthe Administrative Agent and the Minnesota Power Banks to accelerate the maturity of such Guaranteed Obligations.
Appears in 1 contract
Sources: Guarantee Agreement (Allete)
Guaranty. (a) Each Guarantor hereby irrevocably, absolutely and unconditionally guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment and performance of the Guaranteed Obligations, including any interest therein as and when the same shall be due and payable and as and when the same shall be required to be performed under the Loan Documents, whether at stated maturity, required prepayment, declaration, acceleration, demand or otherwise (including interest as provided in this Agreement, accruing after amounts that would become due but for the filing operation of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes automatic stay under Section 362(a) of the Bankruptcy Code or Code). Guarantor hereby irrevocably, absolutely and unconditionally covenants and agrees that it is an allowed claim in such proceeding)liable for the Guaranteed Obligations as a primary obligor. This Guaranty is a continuing guarantee of: (i) payment; and (ii) performance of any non-monetary Guaranteed Obligations, plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromis not a guaranty of collection.
(b) Regardless Upon the occurrence, from time to time, of whether any proposed guarantor default by Borrower in the payment or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect performance of the Obligations Guaranteed Obligations, or any part thereof, when such Guaranteed Obligations are due to be paid or performed by Borrower and regardless after the expiration of whether any applicable grace and notice period under the Loan Documents, Guarantor shall promptly pay or perform the Guaranteed Obligations then due in full, without notice or demand by Lender. In such case it shall not any Person now be necessary for Lender, in order to enforce such payment by Guarantor, to first: (i) institute suit or hereafter responsible to the Lender Group, exhaust its remedies against Borrower or any of them, other Person; (ii) enforce any rights against any collateral for the Obligations Secured Debts; or (iii) demonstrate that Lender has currently suffered any part thereof, whether under this Guaranty loss or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees liability or that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in collateral for the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of Secured Debts provides inadequate security for the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminatedSecured Debts.
(c) Each Without limiting any other provision of this Guaranty, Guarantor absolutely, unconditionally acknowledges and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in fullagrees that, to the extent of its obligations hereunderLender realizes any proceeds under any Loan Documents which secure the Secured Debts including, without limitation, any voluntary payments or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought prepayments by the Administrative Agent Borrower or any other member Loan Party on account of the Lender Group to collect the Obligations Loan, insurance or any portion thereofcondemnation proceeds, or to enforce proceeds from the obligations sale at foreclosure of any collateral for the Secured Debts, then such proceeds shall, to the extent not prohibited by applicable law, not be applied to or r redited against the Guaranteed Obligations and may be applied by Lender to that portion of the Guarantors under this GuarantySecured Debts that are not Guaranteed Obligations in such order and priority as Lender shall determine in its sole discretion.
(d) The If this Guaranty is executed by more than one party constituting Guarantor, it is specifically agreed that Lender Group, may enforce the provisions hereof with respect to one or more of such parties constituting a Guarantor without seeking to enforce the same as to all or any such parties. Each of them, may from time to time, without exonerating the parties constituting Guarantor hereunder hereby waives any requirement of joinder of all or releasing any other of the parties constituting Guarantor in any way under this Guaranty, (i) take such further suit or other security or securities for proceeding to enforce the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph provisions of this Guaranty, be deemed a legal or equitable discharge . The liability hereunder of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such all parties constituting Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waiversjoint and several.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Guaranty of Nonrecourse Carveout Liabilities and Obligations (Generation Income Properties, Inc.)
Guaranty. (a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, Guarantors unconditionally and irrevocably waives any guarantees the due and all right to assert any defense (other than punctual payment and performance of the defense Guaranteed Obligations of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations . Each of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to further agrees that the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and included in such manner, and with Guarantor's Guaranteed Obligations may be extended or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be releasedrenewed, in whole or in part, without notice to or further assent from such Guarantor, and that such Guarantor will remain bound upon this guaranty notwithstanding any extension or renewal of any of such Obligations.
(b) Each of the Guarantors waives presentation to, demand for payment from and protest to any other Loan Party, and also waives notice of protest for nonpayment. The obligations of each Guarantor hereunder shall not be affected by (i) the failure of any action Agent, any Fronting Bank or thing any DIP Lender to assert any claim or demand or to enforce any right or remedy against any other Loan Party under the provisions of any Loan Document or otherwise; (ii) any extension or renewal of any provision thereof; (iii) any rescission, waiver, compromise, acceleration, amendment or modification of any of the terms or provisions of any Loan Document (except as and to the extent any of the foregoing explicitly related to the Obligations of such Guarantor, in which mightcase the Guaranty shall be modified accordingly); (iv) the release, exchange, waiver or foreclosure of any security for any of the Obligations of any Loan Party (except as and to the extent any of the foregoing explicitly related to the Obligations of such Guarantor, in which case the Guaranty shall be modified accordingly); (v) the failure of any Agent, the Fronting Bank or any DIP Lender to exercise any right or remedy against any other Loan Party; (vi) the release or substitution of any Loan Party; or (vii) any other event or condition which, but for this paragraph of this Guarantythe provisions hereof, be deemed would constitute a legal or equitable discharge of the obligations of such Guarantor hereunder.
(c) Each of the Guarantors further agrees that this guaranty constitutes a surety guaranty of performance and of payment when due of the Guaranteed Obligations of such Guarantor and not just of collection, and waives any right to require that any resort be had by any Agent, any Fronting Bank or guarantorany DIP Lender to any security held for payment of such Guaranteed Obligations (or any other Obligations) or to any balance of any deposit, account or credit on the books of any Agent, any Fronting Bank or any DIP Lender in favor of any Loan Party or to any other Person.
(d) Each of the Guarantors hereby waives any defense that it might have based on a failure to remain informed of the financial condition of any other Loan Party and any circumstances affecting the ability of any other Loan Party to perform under any Loan Document.
(e) Each Guarantor's guaranty hereunder shall not be affected by the genuineness, validity, regularity or enforceability of any of its Guaranteed Obligations (or any other Obligations) or any other instrument evidencing any Guaranteed Obligations (or any other Obligations), or by reason the existence, validity, enforceability, perfection, or extent of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, Collateral therefor or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure other circumstance relating to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, its Guaranteed Obligations (or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any Obligations) that might otherwise constitute a defense to its liability hereunderthis guaranty. No Agent, Fronting Bank or DIP Lender makes any right of counterclaim representation or offset of warranty in respect to any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waiverssuch circumstances.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid Upon any of the Obligations becoming due and payable (by acceleration or in otherwise), the case Agents, DIP Lenders and the Fronting Bank shall be entitled to immediate payment of Letter such Obligations by each of Credit the Guarantors whose Guaranteed Obligations include such Obligations, secured through delivery of cash collateral in an amount equal upon written demand by the Administrative Agent, without further application to one hundred five percent (105%) or order of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupBankruptcy Court.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Frontiervision Holdings Capital Corp)
Guaranty. (a) Each For value received, Guarantor does hereby guarantees unconditionally, absolutely and irrevocably guarantee, as primary obligor and not as a surety, to Buyer the full, complete and prompt payment by Seller of any and all amounts and payment obligations now or hereafter owing from Seller to Buyer under the PPA, including, without limitation, compensation for penalties, the Termination Payment, indemnification payments or other damages), as and when required pursuant to the Administrative Agent, for the benefit terms of the Lender GroupPPA strictly in accordance therewith (collectively, the “Guaranteed Amount”); provided that, other than with respect to the Enforcement Expenses, Guarantor’s aggregate liability hereunder shall in no circumstances exceed $180/kW (the “Guaranty Cap”). This Guaranty is an irrevocable, absolute, unconditional and continuing guarantee of the full and prompt punctual payment and performance, and not of collection, of the Guaranteed Amount and, except as otherwise expressly addressed herein, is in no way conditioned upon any requirement that Buyer first attempt to collect the payment of the ObligationsGuaranteed Amount from Seller, including any interest therein other guarantor of the Guaranteed Amount or any other person or entity or resort to any other means of obtaining payment of the Guaranteed Amount. In the event Seller shall fail to duly, completely or punctually pay any Guaranteed Amount as required pursuant to the PPA, Guarantor shall promptly pay such amount as required herein. Guarantor further agrees to pay any and all expenses (including interest as provided the reasonable fees and disbursements of counsel) that may be paid or incurred by Buyer in enforcing any rights with respect to, or collecting, any or all of the Guaranteed Amount and/or enforcing any rights with respect to, or collecting against, Guarantor 79169454.10 0081519-00016 under this AgreementGuaranty (any such expenses, accruing after the filing “Enforcement Expenses”); it being understood and agreed that the amount of a petition initiating any Insolvency Proceedings, whether or such Enforcement Expenses shall not such interest accrues or is recoverable against Borrowers after the filing of such petition be included in calculating Guarantor’s liability hereunder for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromCap.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Power Purchase and Sale Agreement
Guaranty. (a) Each Guarantor jointly and severally hereby unconditionally and irrevocably guarantees to the Administrative Agentpunctual payment when due, whether at stated maturity, by acceleration or otherwise, of all Obligations of each other Credit Party, including, without limitation, Borrower, now or hereafter existing under any Loan Document, whether for the benefit of the Lender Groupprincipal, the full and prompt payment of the Obligationsinterest (including, including any without limitation, all interest therein (including interest as provided in this Agreement, accruing that accrues after the filing commencement of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing proceeding of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor Borrower or any other Person shall become in Credit Party under any other way responsible to the Lender GroupDebtor Relief Laws), fees, commissions, expense reimbursements, indemnifications or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash otherwise (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in fullsuch obligations, to the extent of its obligations hereundernot paid by Borrower, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)the “Guaranteed Obligations”), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under pay any and all circumstancescosts, fees and expenses (including counsel fees and expenses) incurred by Agent and Lenders in enforcing any rights under the guaranty set forth in this Article XIV. Without limiting the generality of the foregoing, each Guarantor agrees Guarantor’s liability shall extend to all amounts that until each and every one constitute part of the covenants Guaranteed Obligations and agreements of this Guaranty is fully performed, would be owed by Borrower or any other Credit Party to Agent and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by Lenders under any action or thing which mightLoan Document, but for this paragraph of this Guaranty, be deemed a legal the fact that they are unenforceable or equitable discharge of a surety or guarantor, or by reason not allowable due to the existence of any waiver, omission proceeding under any Debtor Relief Laws involving Borrower or any other Credit Party. This guaranty is a guaranty of payment and not of collection. Should a claim be made upon Agent or any Lender at any time for repayment of any amount received by Agent or any Lender in payment of the Lender GroupObligations, or any part thereof, whether received from any Credit Party or received by Agent or any Lender as the proceeds of themCollateral, or their failure to proceed promptly or otherwise, or by reason of: (i) any judgment, decree or order of any action taken court or omitted by the administrative body having jurisdiction over Agent or any Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk oftheir property, or affects the rights (ii) any settlement or remedies of, such Guarantor or by reason compromise of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, such claim effected by Agent or any other guarantor or suretyLender, and such in its sole discretion, with the claimant (including a Credit Party), each Guarantor hereby expressly waives and surrenders any defense shall remain liable to its liability hereunder, Agent or any right of counterclaim such Lender for the amount so repaid to the same extent as if such amount had never originally been received by Agent or offset any such Lender, notwithstanding any termination hereof or the cancellation of any nature note or description which it may have or may exist based upon, and shall be deemed to have consented to, other instrument evidencing any of the foregoing acts, omissions, things, agreements or waiversObligations.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Credit Agreement (Adam Inc)
Guaranty. (a) Each Guarantor hereby guarantees of the Guarantors hereby, jointly and severally, unconditionally and irrevocably, as a primary obligor and not only a surety, guaranties to the Administrative Agent, for the benefit of the Lender GroupLenders, the full Issuing Bank and their respective successors, indorsees, transferees and assigns, the prompt and complete payment and performance by the Borrowers when due (whether at the stated maturity, by acceleration or otherwise) of the Borrower Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor Anything herein or any other Person shall become in any other way responsible Loan Document to the Lender Groupcontrary notwithstanding, or any the maximum liability of them, for or each Guarantor hereunder and under the other Loan Documents shall in respect of no event exceed the Obligations or any part thereof, amount which can be guarantied by such Guarantor under applicable federal and regardless of whether or not any Person now or hereafter responsible state laws relating to the Lender Group, or any insolvency of them, for debtors (after giving effect to the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid right of contribution established in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminatedSection 2.2).
(c) Each Guarantor absolutely, unconditionally agrees that the Secured Obligations may at any time and irrevocably waives any and all right from time to assert any defense (other than time exceed the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations amount of the Guarantors under liability of such Guarantor hereunder without impairing the guaranty contained in this Guaranty Section 2 or affecting the obligations rights and remedies of the Administrative Agent or any Lender hereunder.
(d) The guaranty contained in this Section 2 shall remain in full force and effect until all of the Secured Obligations shall have been Paid in Full.
(e) No payment made by the Borrowers, any of the Guarantors, any other guarantor or any other Person or party (including Borrowers) relating to this Guaranty received or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought collected by the Administrative Agent or any other member of Lender from the Lender Group to collect the Obligations or any portion thereofBorrowers, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender GroupGuarantors, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, other Person by virtue of any action or proceeding or any right of counterclaim set-off or offset of any nature appropriation or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, application at any time or from time to time when any amount in reduction of or in payment of the Secured Obligations shall be due and payable deemed to modify, reduce, release or otherwise affect the liability of any Guarantor hereunder which shall, notwithstanding any such payment (other than any payment made by any Guarantor, if Borrowers shall not have timely paid any such Guarantor in respect of the Secured Obligations (or any payment received or collected from such Guarantor in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) respect of the Letter of Credit Secured Obligations), set-off and appropriate and apply to any portion of remain liable for the Secured Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and up to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect maximum liability of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to hereunder until the prior payment Secured Obligations are Paid in full of the Obligations to the satisfaction of the Lender GroupFull.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Guaranty and Collateral Agreement (Russ Berrie & Co Inc)
Guaranty. Each Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably
(a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt punctual payment when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, of all Obligations of the Borrower and each other Obligor now or hereafter existing under the Credit Agreement, the Notes any Letter of Credit and each other Loan Document to which the Borrower or such other Obligor is or may become a party (or, in the case of Letters of Credit, is or may become the account party), whether for principal, interest, Reimbursement Obligations, including any interest therein fees, expenses or otherwise (including interest as provided in this Agreement, accruing after all such amounts which would become due but for the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code or is an allowed claim in such proceedingCode, 11 U.S.C. Section 362(a), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by lawoperation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, through an attorney-at-law11 U.S.C. Section 502(b) and Section 506(b)), or under advice therefrom.and
(b) Regardless indemnifies and holds harmless each Lender Party and each holder of whether a Note for any proposed guarantor and all costs and expenses (including reasonable attorney's fees and expenses) incurred by such Lender Party or such holder, as the case may be, in enforcing any rights under this Guaranty; provided, however, that each Guarantor shall be liable under this Guaranty only for the maximum amount of such liability that can be hereby incurred without rendering this Guaranty, as it relates to such Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount. This Guaranty constitutes a guaranty of payment when due and not of collection, and each Guarantor specifically agrees that it shall not be necessary or required that any Lender Party or any holder of any Note exercise any right, assert any claim or demand or enforce any remedy whatsoever against the Borrower or any other Person shall become in Obligor (or any other way responsible Person) before or as a condition to the Lender Group, or any obligations of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each such Guarantor hereby declares hereunder. Each Guarantor acknowledges and agrees that this Guaranty each obligation hereunder shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case obligation of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. Each Borrower and each Guarantor, other than Subsidiaries that are Excluded Subsidiaries, severally, unconditionally and irrevocably guarantees (athe undertaking by each Borrower and each Guarantor under this Article VIII being the “Guaranty”) Each Guarantor hereby guarantees to the Administrative Agentpunctual payment when due, whether at scheduled maturity or at a date fixed for the benefit prepayment or by acceleration, demand or otherwise, all Cash Management Obligations of the Lender Group, Loan Parties and the full and prompt payment other Restricted Subsidiaries of the Borrower, all Obligations under Secured Hedge Agreements but excluding all Excluded Swap Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing and all other Obligations of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes each of the Bankruptcy Code other Loan Parties and each Specified Hedge Agreement Subsidiaries now or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or hereafter existing under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Loan Documents (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing Obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premium, fees, indemnification payments, contract causes of action, costs, expenses or otherwise (such Obligations being the “Guaranteed Obligations”); provided, that, endorsements of negotiable instruments for deposit or collection in the ordinary course of business are not Guaranteed Obligations for purposes of the foregoing Section 8.01; and provided, further, that notwithstanding anything herein to the contrary, (a) any Borrower that is a Foreign Subsidiary shall not guarantee the Obligations of ▇▇▇▇ or any part thereofother Loan Party other than the Obligations of any other Borrower that is a Foreign Subsidiary, and regardless (b) any Borrower that is a Foreign Subsidiary shall guarantee the Obligations of whether or not any Person now or hereafter responsible other Borrower that is a Foreign Subsidiary only to the Lender Groupextent such guarantee could not reasonably be expected to result in a material adverse tax consequence to ▇▇▇▇ or one of its Subsidiaries (as determined in good faith by ▇▇▇▇), or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutelyany Guarantees by Foreign Subsidiaries shall be subject to any applicable general mandatory statutory limitations, unconditionally fraudulent preference, “thin capitalization” rules, exchange control restrictions, corporate benefit, financial assistance and irrevocably waives customary guarantee limitation language to be agreed by the Administrative Agent and ▇▇▇▇ in respect of the relevant jurisdiction and (d) any Guarantees by domestic Loan Parties of the Obligations of any Borrower that is a Foreign Subsidiary shall only be required to the extent such guarantee could not reasonably be expected to result in a material adverse tax consequence to ▇▇▇▇ or one of its Subsidiaries (as determined in good faith by ▇▇▇▇), and agrees to pay any and all right to assert any defense expenses (other than the defense including, without limitation, reasonable fees and expenses of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowerscounsel) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought incurred by the Administrative Agent or any other member of the Lender Group to collect the Obligations or other Secured Parties solely in enforcing any portion thereof, or to enforce the obligations of any of the Guarantors rights under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees Borrower’s and each Guarantor’s respective liability shall extend to all amounts that until each and every one constitute part of the covenants Guaranteed Obligations and agreements of this Guaranty is fully performed, and without possibility of recourse, whether would be owed by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, other Loan Parties or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment Specified Hedge Agreement Subsidiary to the Administrative Agent or any of the other Person pursuant to Secured Parties under or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate the Loan Documents but for the fact that they are unenforceable or not allowable due to the prior payment in full existence of the Obligations to the satisfaction of the Lender Group.
(g) The creation a bankruptcy, reorganization or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or similar proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or such other similar laws relating to the insolvency of debtorsLoan Party.
Appears in 1 contract
Guaranty. (a) Each Guarantor In recognition of the direct and indirect benefits to be received by Guarantors from the proceeds of the Term Loan and by virtue of the financial accommodations to be made to Borrowers, each of the Guarantors, jointly and severally, hereby unconditionally and irrevocably guarantees as a primary obligor and not merely as a surety the full and prompt payment when due, whether upon maturity, acceleration, or otherwise, of all of the Guarantied Obligations. If any or all of the Obligations becomes due and payable, each of the Guarantors, unconditionally and irrevocably, and without the need for demand, protest, or any other notice or formality, promises to the Administrative pay such indebtedness to Agent, for the benefit of the Lender Group, the full together with any and prompt payment all expenses (including Lender Group Expenses) that may be incurred by Agent or any member of the ObligationsLender Group in demanding, including enforcing, or collecting any interest therein of the Guarantied Obligations (including interest as provided in this Agreement, accruing after the filing enforcement of a petition initiating any Insolvency Proceedings, whether or not collateral for such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, collateral for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty). If a claim is ever made upon Agent or any member of the Lender Group for repayment or recovery of any amount or amounts received in payment of or on account of any or all of the Obligations and any of Agent or any member of the Lender Group repays all or part of said amount by reason of (i) any judgment, decree, or order of any court or administrative body having jurisdiction over such payee or any of its property, or (ii) any settlement or compromise of any such claim effected by such payee with any such claimant (including any Borrower or any Guarantor), then and in each such event, each of the Guarantors agrees that any such judgment, decree, order, settlement, or compromise shall be binding upon the Guarantors, notwithstanding any revocation (or purported revocation) of this Guaranty or other instrument evidencing any liability of any Grantor, and the Guarantors shall be and remain liable to the aforesaid payees hereunder for the amount so repaid or recovered to the same extent as if such amount had never originally been received by any such payee.
(b) Additionally, each of the Guarantors unconditionally and irrevocably guarantees the payment of any and all of the Obligations to Agent, for the benefit of the Lender Group, whether or not due or payable by any Loan Party upon the occurrence of any of the events specified in Section 8.4 or 8.5 of the Credit Agreement, and irrevocably and unconditionally promises to pay such indebtedness to Agent, for the benefit of the Lender Group, without the requirement of demand, protest, or any other notice or other formality, in lawful money of the United States.
(c) The liability of each of the Guarantors hereunder is primary, absolute, and unconditional, and is independent of any security for or other guaranty of the Obligations, whether executed by any other Guarantor or by any other Person, and the liability of each of the Guarantors hereunder shall not be affected or impaired by (i) any payment on, or in reduction of, any such other guaranty or undertaking, (ii) any dissolution, termination, or increase, decrease, or change in personnel by any Grantor, (iii) any payment made to Agent or any member of the Lender Group on account of the Obligations which Agent, or such member of the Lender Group repays to any Grantor pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding (or any settlement or compromise of any claim made in such a proceeding relating to such payment), and each of the Guarantors waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, or (iv) any action or inaction by Agent or any member of the Lender Group, or (v) any invalidity, irregularity, avoidability, or unenforceability of all or any part of the Obligations or of any security therefor.
(d) This Guaranty includes all present and future Guarantied Obligations including any under transactions continuing, compromising, extending, increasing, modifying, releasing, or renewing the Guarantied Obligations, changing the interest rate, payment terms, or other terms and conditions thereof, or creating new or additional Guarantied Obligations after prior Guarantied Obligations have been satisfied in whole or in part. To the maximum extent permitted by law, each Guarantor hereby waives any right to revoke this Guaranty as to future Guarantied Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that (i) no such revocation shall be effective until written notice thereof has been received by Agent, (ii) no such revocation shall apply to any Guarantied Obligations in existence on the date of receipt by Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Guarantied Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any member of the Lender Group in existence on the date of such revocation, (iv) no payment by any Guarantor, any Borrower, or from any other source, prior to the date of Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by any Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Guarantied Obligations as to which the revocation is effective and which are not, therefore, guarantied hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Agent (for the benefit of the Lender Group) and its successors, transferees, or assigns.
(e) The guaranty by each of the Guarantors hereunder is a guaranty of payment and not of collection. The obligations of each of the Guarantors hereunder are independent of the obligations of any other Guarantor or Grantor or any other Person and a separate action or party actions may be brought and prosecuted against one or more of the Guarantors whether or not action is brought against any other Guarantor or Grantor or any other Person and whether or not any other Guarantor or Grantor or any other Person be joined in any such action or actions. Each of the Guarantors waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or the enforcement hereof. Any payment by any Grantor or other circumstance which operates to toll any statute of limitations as to any Grantor shall operate to toll the statute of limitations as to each of the Guarantors.
(f) Each of the Guarantors authorizes Agent and the members of the Lender Group without notice or demand, and without affecting or impairing its liability hereunder, from time to time to:
(i) change the manner, place, or terms of payment of, or change or extend the time of payment of, renew, increase, accelerate, or alter: (A) any of the Obligations (including Borrowersany increase or decrease in the principal amount thereof or the rate of interest or fees thereon); or (B) relating to any security therefor or any liability incurred directly or indirectly in respect thereof, and this Guaranty shall apply to the Obligations as so changed, extended, renewed, or altered;
(ii) take and hold security for the payment of the Obligations and sell, exchange, release, impair, surrender, realize upon, collect, settle, or otherwise deal with in any manner and in any order any property at any time pledged or mortgaged to secure the Obligations or any of the Guarantied Obligations (including any of the obligations of all or any of the Guarantors under this Guaranty Guaranty) incurred directly or otherwise with indirectly in respect to the Obligations in any action thereof or proceeding brought by the Administrative Agent hereof, or any offset on account thereof;
(iii) exercise or refrain from exercising any rights against any Grantor;
(iv) release or substitute any one or more endorsers, guarantors, any Grantor, or other member obligors;
(v) settle or compromise any of the Lender Group to collect the Obligations Obligations, any security therefor, or any portion thereof, or to enforce the obligations liability (including any of those of any of the Guarantors under this Guaranty.) incurred directly or indirectly in respect thereof or hereof, and may subordinate the payment of all or any part thereof to the payment of any liability (whether due or not) of any Grantor to its creditors;
(dvi) The apply any sums by whomever paid or however realized to any liability or liabilities of any Grantor to Agent or any member of the Lender GroupGroup regardless of what liability or liabilities of such Grantor remain unpaid;
(vii) consent to or waive any breach of, or any act, omission, or default under, this Agreement, any other Loan Document, or any of them, may from time the instruments or agreements referred to time, without exonerating herein or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem propertherein, or (ii) releaseotherwise amend, dischargemodify, abandon or otherwise deal with or fail to deal with supplement this Agreement, any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Groupother Loan Document, or any of themsuch other instruments or agreements; or
(viii) take any other action that could, or (iii) amend, modify, extend, accelerate or waive in any manner any under otherwise applicable principles of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantorlaw, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related rise to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety one or guarantor, or by reason of any waiver, omission more of the Lender Group, Guarantors from all or any part of them, its liabilities under this Guaranty.
(g) It is not necessary for Agent or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on Group to inquire into the other hand, capacity or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right powers of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing actsGuarantors or the officers, omissionsdirectors, thingspartners or agents acting or purporting to act on their behalf, agreements and any Obligations made or waiverscreated in reliance upon the professed exercise of such powers shall be Guarantied hereunder.
(fh) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall Each Guarantor jointly and severally guarantees that the Guarantied Obligations will be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect strictly in accordance with this Agreementthe terms of the Loan Documents, any deposits, property, balances, credit accounts or moneys regardless of any Guarantor law, regulation, or order now or hereafter in effect in any jurisdiction affecting any of such terms or the possession rights of any member of the Lender Group with respect thereto. The obligations of each Guarantor under this Guaranty are independent of the Guarantied Obligations, and a separate action or actions may be brought and prosecuted against each Guarantor to enforce such obligations, irrespective of whether any action is brought against any other Guarantor or whether any other Guarantor is joined in any such action or actions. The liability of each Guarantor under their respective control for this Guaranty shall be absolute and unconditional irrespective of, and each Guarantor hereby irrevocably waives any purpose. If defense it may now or hereafter have in any way relating to, any or all of the following:
(i) any lack of validity or enforceability of any Loan Document or any agreement or instrument relating thereto;
(ii) any change in the time, manner, or place of payment of, or in any other term of, all or any of the Guarantied Obligations, or any other amendment or waiver of or any consent to departure from any Loan Document, including any increase in the Guarantied Obligations resulting from the extension of additional credit;
(iii) any taking, exchange, release, or non-perfection of any Lien in and to any Collateral, or any taking, release, amendment, waiver of, or consent to departure from any other guaranty, for all or any of the extent Guarantied Obligations;
(iv) the existence of any claim, set-off, defense, or other right that any Guarantor makes may have at any payment to the Administrative time against any Person, including Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction member of the Lender Group.;
(gv) The creation any defense, set-off, counterclaim, or existence claim, of any kind or nature, arising directly or indirectly from time to time the present or future lack of Obligations in excess perfection, sufficiency, validity, or enforceability of the amount committed to Guarantied Obligations or outstanding on the date any security therefor;
(vi) any right or defense arising by reason of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair claim or affect this Guaranty or the rights defense based upon an election of remedies by any member of the Lender Group herein. It is the intention including any defense based upon an impairment or elimination of each Guarantor and the Administrative Agent that each such Guarantor’s obligations hereunder shall berights of subrogation, but not in excess reimbursement, contribution, or indemnity of such Guarantor against any other Grantor or any guarantors or sureties;
(vii) any change, restructuring, or termination of the corporate, limited liability company, or partnership structure or existence of any Grantor; or
(viii) any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void Grantor or voidable as would otherwise be held any other guarantor or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorssurety.
Appears in 1 contract
Guaranty. (a) Each The Guarantor hereby guarantees to the Administrative Agentabsolutely and unconditionally, for the benefit and jointly and severally, guarantees, as a guaranty of payment and performance and not merely as a guaranty of collection, prompt payment when due, whether at stated maturity, by required prepayment, upon acceleration, demand or otherwise, and at all times thereafter, of the Lender Group, the full and prompt payment Foreign Obligor Obligations of the Obligationseach Designated Borrower, including any interest therein (including interest as provided in this Agreementall renewals, accruing after the filing of a petition initiating any Insolvency Proceedingsextensions, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding)amendments, plus reasonable refinancings and other modifications thereof and all costs, attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought incurred by the Administrative Agent and any other Secured Party in connection with the collection or enforcement thereof, and whether recovery upon such indebtedness and liabilities may be or hereafter become unenforceable or shall be an allowed or disallowed claim under any proceeding or case commenced by or against the Guarantor or any Designated Borrower under the Bankruptcy Code (Title 11, United States Code), any successor statute or any other member of the Lender Group to collect the Obligations or any portion thereofliquidation, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Groupconservatorship, or any of thembankruptcy, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities assignment for the Obligations or any part thereof as they may deem properbenefit of creditors, or (ii) releasemoratorium, dischargerearrangement, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcyreceivership, insolvency, reorganization, moratorium, fraudulent conveyance or similar debtor relief laws of the United States or other similar laws applicable jurisdictions from time to time in effect and affecting the rights of creditors generally (collectively, “Debtor Relief Laws”), and including interest that accrues after the commencement by or against any Loan Party of any proceeding under any Debtor Relief Laws (collectively, the “Guaranteed Obligations”). The Administrative Agent’s and the other Secured Parties’ books and records showing the amount of the Guaranteed Obligations shall be admissible in evidence in any action or proceeding, and shall be binding upon the Guarantor and conclusive for the purpose of establishing the amount of the Guaranteed Obligations, absent demonstrable error. This Guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed Obligations or any instrument or agreement evidencing any Guaranteed Obligations, or by the existence, validity, enforceability, perfection, non-perfection or extent of any collateral therefor, or by any fact or circumstance relating to the insolvency Guaranteed Obligations which might otherwise constitute a defense to the obligations of debtorsthe Guarantor under this Guaranty, and the Guarantor hereby irrevocably waives any defenses it may now have or hereafter acquire in any way relating to any or all of the foregoing. Anything contained herein to the contrary notwithstanding, the obligations of the Guarantor hereunder at any time shall be limited to an aggregate amount equal to the largest amount that would not render its obligations hereunder subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code (Title 11, United States Code) or any comparable provisions of any similar federal or state law.
Appears in 1 contract
Guaranty. (a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, Guarantors unconditionally and irrevocably guarantees the full due and prompt punctual payment and performance by Borrower of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes . Each of the Bankruptcy Code Guarantors further agrees that the Obligations may be extended or is an allowed claim renewed, in such proceeding)whole or in part, plus reasonable attorneys’ fees without notice to or further assent from it, and expenses if it will remain bound upon this guaranty notwithstanding any extension or renewal of any of the Obligations. The obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromof the Guarantors shall be joint and several.
(b) Regardless Each of whether any proposed guarantor the Guarantors waives presentation to, demand for payment from and protest to Borrower or any other Person Guarantor, and also waives notice of protest for nonpayment. The Obligations of the Guarantors hereunder shall become in not be affected by (i) the failure of the Agent to assert any claim or demand or to enforce any right or remedy against Borrower or any other way responsible to Guarantor under the Lender Group, provisions of this Agreement or any other Loan Document or otherwise; (ii) any extension or renewal of themany provision hereof or thereof; (iii) any rescission, for waiver, compromise, acceleration, amendment or in respect modification of any of the Obligations terms or any part thereof, and regardless provisions of whether or not any Person now or hereafter responsible to the Lender Group, or any of themthe Loan Documents; (iv) the release, exchange, waiver or foreclosure of any security held by Agent for the Obligations or any part thereof, whether under this Guaranty of them; (v) the failure of Agent to exercise any right or otherwise, shall cease to be so liable, each remedy against any other Guarantor; or (vi) the release or substitution of any Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminatedany other Company.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under further agrees that this Guaranty guaranty constitutes a guaranty of performance and of payment when due and not just of collection, and waives any right to require that any resort be had by Agent to any security held for payment of the Obligations or the obligations to any balance of any other Person deposit, account or party (including Borrowers) relating to this Guaranty or credit on the obligations books of any Agent in favor of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent Borrower or any other member of the Lender Group to collect the Obligations or any portion thereofGuarantor, or to enforce the obligations of any of the Guarantors under this Guarantyother Person.
(d) The Lender Group, or Each of the Guarantors hereby waives any defense that it might have based on a failure to remain informed of them, may from time the financial condition of Borrower and of any other Guarantor and any circumstances affecting the ability of Borrower to time, without exonerating or releasing any Guarantor in any way perform under this GuarantyAgreement.
(e) Each Guarantor's guaranty shall not be affected by the genuineness, (i) take such further validity, regularity or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor enforceability of the Obligations or any security other instrument evidencing any Obligations, or securities by the existence, validity, enforceability, perfection, or extent of any collateral therefor or by any part thereof now other circumstance relating to the Obligations which might otherwise constitute a defense to this guaranty. Agent makes no representation or hereafter held warranty in respect to any such circumstances or shall have any duty or responsibility whatsoever to any Guarantor in respect of the management and maintenance of the Obligations.
(f) Upon the Obligations becoming due and payable (by acceleration or otherwise), Agent shall be entitled to immediate payment of such Obligations by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any Guarantors upon written demand by Agent.
17.2 The obligations of the provisionsGuarantors hereunder shall not be subject to any reduction, termslimitation, impairment or conditions termination for any reason, including, without limitation, any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any defense or set-off, counterclaim, recoupment or termination whatsoever by reason of the Loan Documentsinvalidity, all as they may consider expedient illegality or appropriate in their sole and absolute discretionunenforceability of the Obligations. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole discharged or in part, by any action impaired or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted otherwise affected by the Lender Group, failure of Agent to assert any claim or demand or to enforce any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other handremedy under this Agreement, or any other guarantor agreement, by any waiver or suretymodification of any provision thereof, and such Guarantor hereby expressly waives and surrenders by any defense to its liability hereunderdefault, failure or delay, willful or otherwise, in the performance of the Obligations, or by any right of counterclaim other act or offset of thing or omission or delay to do any nature other act or description thing which it may have or may exist based upon, and shall be deemed to have consented to, might in any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon manner or to any Guarantorextent vary the risk of the Guarantors or would otherwise operate as a discharge of the Guarantors as a matter of law, at unless and until the Obligations are paid in full.
17.3 Upon payment by any time Guarantor of any sums to Agent hereunder, all rights of such Guarantor against Borrower, arising as a result thereof by way of right of subrogation or from time otherwise, shall in all respects be subordinate and junior in right of payment to time when the prior final and indefeasible payment in full of all the Obligations. If any amount shall be due paid to such Guarantor for the account of Borrower, such amount shall be held in trust for the benefit of Agent, and payable hereunder by any Guarantorshall forthwith be paid to Agent to be credited and applied to the Obligations, if Borrowers whether matured or unmatured.
17.4 Anything in this Agreement to the contrary notwithstanding, (i) in no event shall not have timely paid any the amount of the Obligations liability Guarantors hereunder exceed the maximum amount that (or in after giving effect to the incurring of the obligations hereunder and to any rights to contribution of Guarantors, as the case may be, from other affiliates of Letter Borrower) would not render the rights to payment of Credit ObligationsAgent hereunder void, secured through delivery voidable or avoidable under any applicable fraudulent transfer law and (ii) to the extent of cash collateral in an amount equal a conflict between the terms of this Agreement and the Canadian Guarantee, except with respect to one hundred five percent (105%) Section 17 of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect terms of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof Agreement shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Groupgovern.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. (a) Each Guarantor The Guarantors hereby guarantees to jointly and severally unconditionally guarantee the Administrative Agentpunctual payment when due, for the benefit whether at stated maturity, by acceleration or otherwise, of (i) all Obligations of the Lender GroupBorrower and its Subsidiaries now or hereafter existing, the full and prompt payment of the Obligationswhether for principal, interest (including any interest therein accruing during a Proceeding (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, hereinafter defined) whether or not the claim for such interest accrues is allowable or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim discharged in such proceedingProceeding), plus reasonable attorneys’ fees and fees, expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%ii) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert reasonable expenses (including counsel fees and expenses) incurred by any defense (other than the defense of payment Guaranteed Party in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of enforcing any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors rights under this Subsidiary Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(ecollectively, the "Guaranteed Obligations"), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent parties hereto that each in no event shall any Guarantor’s 's obligations hereunder shall beunder this Subsidiary Guaranty constitute or result in a violation of any applicable fraudulent conveyance or similar law of any relevant jurisdiction. Therefore, in the event that this Subsidiary Guaranty would, but not for the preceding sentence, constitute or result in excess ofsuch violation, then the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect liability of a Guarantor under this Subsidiary Guaranty shall be reduced to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, permissible under the applicable fraudulent conveyance or other similar laws relating laws. Any and all payments by the Guarantors hereunder shall be made free and clear of and without deduction for any set-off or counterclaim.
(b) Additionally, each Guarantor unconditionally and irrevocably, jointly and severally, guarantees the payment of any and all of the Guaranteed Obligations to the insolvency Guaranteed Parties whether or not due or payable by the Borrower upon the occurrence in respect of debtorsthe Borrower of any Proceeding, and unconditionally and irrevocably, jointly and severally, promises to pay such Guaranteed Obligations to the Guaranteed Parties, or order, on demand, in lawful money of the United States.
Appears in 1 contract
Sources: Credit Agreement (Amre Inc)
Guaranty. (a) Each Guarantor hereby of the Subsidiary Guarantors hereby, jointly and severally, unconditionally and irrevocably guarantees to each Holder and to the Administrative AgentTrustee, for and their respective successors and assigns, the benefit due and punctual payment of principal of and, within applicable grace periods, interest on the Securities when due, whether at Stated Maturity, by acceleration or otherwise, and all other monetary obligations of the Lender GroupIssuer under this Indenture and the Securities and the due and punctual performance within applicable grace period of all Obligations of the Issuer under this Indenture and the Securities. Each Subsidiary Guarantor further agrees that the Obligations may be extended or renewed, in whole or in part, without notice or further assent from such Subsidiary Guarantor, and that such Subsidiary Guarantor will remain bound by this Article 11 notwithstanding any extension or renewal of any Obligation. Each Subsidiary Guarantor waives presentation to, demand of payment from and protest to the full and prompt payment Issuer of any of the Obligations, including and also waives notice of protest for nonpayment. Each Subsidiary Guarantor waives notice of any interest therein (including interest as provided in this Agreement, accruing after default under the filing of a petition initiating any Insolvency Proceedings, whether Securities or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes Obligations. The Obligations of the Bankruptcy Code Subsidiary Guarantors hereunder shall not be affected by (a) the failure of any Holder or is an allowed the Trustee to assert any claim in such proceeding), plus reasonable attorneys’ fees and expenses if or demand or to enforce any right or remedy against the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor Issuer or any other Person shall become in under this Indenture, the Securities or any other way responsible to agreement or otherwise; (b) any extension or renewal of any thereof; (c) any rescission, waiver, amendment or modification of any of the Lender Groupterms or provisions of this Indenture, the Securities or any other agreement; (d) the release of them, for any security held by any Holder or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, Trustee for the Obligations or any part thereof, whether under this Guaranty of them; (e) the failure of any Holder or otherwise, shall cease the Trustee to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until exercise any right or remedy against any other guarantor of the Obligations shall have been indefeasibly paid in full in cash or (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent f) (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited except as provided in Section 3.1(g))11.3) any change in the ownership of any Subsidiary Guarantor. Each Subsidiary Guarantor further agrees that its Guaranty herein constitutes a guaranty of payment when due (and not a guaranty of collection) and waives any right to require that any resort be had by any Holder or the Trustee to any security held for payment of the Obligations. The Obligations of the Subsidiary Guarantors hereunder shall not be subject to any reduction, set-offlimitation, counterclaim impairment or cross-termination for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be subject to any nature defense of setoff, counterclaim, recoupment or termination whatsoever with respect to this Guaranty or the obligations by reason of the Guarantors under this Guaranty invalidity, illegality or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor unenforceability of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretionotherwise. Without limiting the generality of the foregoing, the Obligations of the Subsidiary Guarantors herein shall not be discharged or impaired or otherwise affected by the failure of Section 3.1(e)any Holder or the Trustee to assert any claim or demand or to enforce any remedy under this Indenture, it is understood the Securities or any other agreement, by any waiver or modification of any thereof, by any default, failure or delay, willful or otherwise, in the performance of the Obligations, or by any act or thing or omission or delay to do any other act or thing which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor or would otherwise act as a discharge of any Subsidiary Guarantor as a matter of law or equity. Each Subsidiary Guarantor further agrees that its Guaranty herein shall continue to be effective or be reinstated, as the Lender Groupcase may be, if at any time payment, or any part thereof, of them, may, without exonerating principal of or releasing interest on any Guarantor, give up, modify Obligation is rescinded or abstain from perfecting must otherwise be restored by any Holder or taking advantage the Trustee upon the bankruptcy or reorganization of the Issuer or otherwise. In furtherance of the foregoing and not in limitation of any security for other right which any Holder or the Obligations and accept Trustee has at law or make in equity against any compositions or arrangementsSubsidiary Guarantor by virtue hereof, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms failure of the Issuer to pay the principal of or interest on any Obligation when and as the same shall become due, whether at the stated maturity thereof, by acceleration, by redemption or otherwise, each Subsidiary Guarantor hereby promises to and will, upon receipt of written demand by the Trustee, forthwith pay or cause to be paid, in cash, to the Holders or the Trustee an amount equal to the sum of (i) the unpaid principal amount of such Obligations, (ii) accrued and unpaid interest on such Obligations or any (but not to exceed the maximum rate permitted by applicable law) and (iii) all other monetary Obligations of the Loan Documents, or other agreements, instruments or contracts evidencing, related Issuer to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors Holders and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstancesTrustee. Without limiting the generality of the foregoing, each Each Subsidiary Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder it shall not be released, entitled to any right of subrogation in whole or relation to the Holders in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason respect of any waiverObligations guarantied hereby until payment in full of all Obligations. Each Subsidiary Guarantor further agrees that, omission of as between the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any BorrowerSubsidiary Guarantor, on the one hand, and any member of the Lender GroupHolders and the Trustee, on the other hand, (x) the maturity of the Obligations guaranteed hereby may be accelerated as provided in Article 4 for the purposes of such Subsidiary Guarantor's Guaranty herein, notwithstanding any stay, injunction or any other guarantor or suretyprohibition preventing such acceleration in respect of the Obligations guarantied hereby, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset (y) in the event of any nature declaration of acceleration of such Obligations as provided in Article 4, such Obligations (whether or description which it may have or may exist based upon, not due and payable) shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be forthwith become due and payable hereunder by the Subsidiary Guarantor for purposes of this Section. Each Subsidiary Guarantor also agrees, jointly and severally, with the other Subsidiary Guarantors, to pay any Guarantor, if Borrowers shall not have timely paid any of and all costs and expenses (including reasonable attorneys' fees) incurred by the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent Trustee or any other Person pursuant to or Holder in respect of enforcing any rights under this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupSection.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Indenture (Cone Mills Corp)
Guaranty. (a) Each Guarantor hereby guarantees To induce Lenders to make the Administrative Agent, Loans and each other Secured Party to make credit available to or for the benefit of the Lender GroupBorrower and for the applicable Secured Parties to enter into the Loan Documents, each of the Guarantors hereby, jointly and severally, absolutely, unconditionally and irrevocably, as a primary obligor and not only a surety, guarantees to Agent and the other Secured Parties and their respective successors and permitted assigns, the full prompt and prompt complete payment and performance by Borrower and each other Loan Party, as applicable, of the ObligationsObligations when due (whether at the stated maturity or earlier, including by reason of acceleration, any interest therein (including interest as provided in mandatory prepayment required pursuant to the terms of this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether Agreement or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceedingotherwise), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether This Facility Guaranty includes all present and future Obligations including any proposed guarantor or any other Person shall become in any other way responsible to the Lender Groupunder transactions continuing, compromising, extending, increasing, modifying, releasing, or any of themrenewing the Obligations, for changing the interest rate, payment terms, or other terms and conditions thereof, or creating new or additional Obligations after prior Obligations have been satisfied in whole or in respect of part. To the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liablemaximum extent permitted by law, each Guarantor hereby declares waives any right to revoke this Facility Guaranty as to future Obligations. If such a revocation is effective notwithstanding the foregoing waiver, each Guarantor acknowledges and agrees that this (i) no such revocation shall be effective until written notice thereof has been received by Agent, (ii) no such revocation shall apply to any Obligations in existence on the date of receipt by Agent of such written notice (including any subsequent continuation, extension, or renewal thereof, or change in the interest rate, payment terms, or other terms and conditions thereof), (iii) no such revocation shall apply to any Obligations made or created after such date to the extent made or created pursuant to a legally binding commitment of any of the Lenders in existence on the date of such revocation, (iv) no payment by any Guarantor, any Borrower, or from any other source, prior to the date of Agent’s receipt of written notice of such revocation shall reduce the maximum obligation of such Guarantor hereunder, and (v) any payment by any Borrower or from any source other than such Guarantor subsequent to the date of such revocation shall first be applied to that portion of the Obligations as to which the revocation is effective and which are not, therefore, Guaranteed hereunder, and to the extent so applied shall not reduce the maximum obligation of such Guarantor hereunder. This Facility Guaranty shall be binding upon each Guarantor, its successors and assigns and inure to the benefit of and be enforceable by Agent (for the benefit of the Lenders) and its successors, transferees, or assigns.
(c) The guaranty contained in this Article 7 is a joint guaranty of payment and several obligation, shall be a continuing guaranty not of collection and shall be operative remain in full force and binding effect until all of the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender GroupNo payment made by any Borrower, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisionsGuarantors, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunderother Person, or received or collected by Agent or the other Secured Parties from any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented toBorrower, any of the foregoing actsGuarantors, omissions, things, agreements or waivers.
(f) The Lender Group, any other guarantor or any of themother Person, mayas applicable, without demand or notice by virtue of any kind upon action or to proceeding or any Guarantor, set-off or appropriation or application at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any in reduction of or in payment of the Obligations shall be deemed to modify, reduce, release or otherwise affect the Liability of any Guarantor hereunder which Guarantor shall, notwithstanding any such payment (other than any payment received or collected from such Guarantor in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) respect of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of remain liable for the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of until the Obligations to the satisfaction of the Lender Groupare paid in full.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Secured Priming Delayed Draw Term Loan Debtor in Possession Credit Agreement (Endologix Inc /De/)
Guaranty. Guarantor, upon the occurrence of a Springing Recourse Event, hereby absolutely, irrevocably and unconditionally guaranties the due and punctual payment and performance when due, whether at stated maturity, by acceleration or otherwise, of all of the following (collectively referred to as the “Guarantied Obligations”): (a) Each Guarantor hereby guarantees all indebtedness and obligations owing by the Borrower to any Lender, the Agent or to any Lender Hedge Provider with respect to the Administrative AgentHedge Obligations under or in connection with the Term Loan Agreement and any other Loan Document, for including without limitation, the benefit repayment of all principal of the Lender GroupTerm Loans, and the payment of all interest, Fees, charges, attorneys’ fees and other amounts payable to any Lender, the full Agent or any Lender Hedge Provider thereunder or in connection 109306584\V-7 therewith; (b) any and prompt payment all extensions, renewals, modifications, amendments or substitutions of the Obligationsforegoing; (c) all expenses, including any interest therein (including interest as provided in this Agreementincluding, accruing after the filing of a petition initiating any Insolvency Proceedingswithout limitation, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if disbursements, that are incurred by the obligations represented by this Guaranty are collected by lawLenders, through an attorney-at-law, or under advice therefrom.
(b) Regardless the Agent and the Lender Hedge Providers in the enforcement of whether any proposed guarantor of the foregoing or any obligation of Guarantor hereunder; and (d) all other Person shall become in any other way responsible Obligations. Notwithstanding anything to the Lender Groupcontrary herein, or under no circumstances shall any of themthe Guarantied Obligations as to Guarantor include any obligation that constitutes an Excluded Hedge Obligation of Guarantor. For the purposes of this Guaranty, for or in respect the occurrence of any of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty events described in (1)-(3) below shall be a joint “Springing Recourse Event”:
(1) (A) Guarantor fails to perform or comply with any of the following terms (each, a “Guarantor Covenant Breach”):
(i) the Guarantor shall not, directly or indirectly, enter into or conduct any business other than in connection with the ownership, acquisition and several obligationdisposition of general or limited partnership interests in the Borrower and the management of the business of the Borrower, and such activities as are incidental thereto, all of which shall be a continuing guaranty and solely in furtherance of the business of the Borrower;
(ii) the Guarantor shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash not own any assets other than (A) equity interests (or rights, options or warrants in respect thereof) of the case of Letter of Credit ObligationsBorrower, secured through delivery of cash collateral in an amount equal (B) up to a one hundred five percent (1051%) equity interest in any partnership or limited liability company at least ninety-nine percent (99%) of the Letter equity of Credit Obligationswhich is owned, directly or indirectly, by the Borrower; (C) money that has been distributed to Guarantor by Borrower or a Subsidiary of Borrower described in clause (ii)(B) above in accordance with Section 10.2. of the Term Loan Agreement that is held for ten (10) Business Days or less pending further distribution to equity holders of the Guarantor, (D) assets received by the Guarantor from third parties (including, without limitation, 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 the Revolving Loan Commitment shall have been terminated.
(cD) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense above) or equity interests (other than the defense of payment equity interests permitted in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(gclauses (ii)(A) and (B) above)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.;
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amendthe Guarantor shall promptly contribute or otherwise downstream to the Borrower any net assets received by the Guarantor from third parties (including, modifywithout limitation, extendthe proceeds from any Equity Issuance), accelerate subject to the terms of clause (ii)(D) above;
(iv) the Guarantor shall not merge or waive consolidate (except as permitted in the Term Loan Agreement), or dissolve, liquidate or otherwise wind up its business, affairs or assets; 109306584\V-7
(v) the Guarantor shall not guarantee or otherwise be or become obligated in respect of, any manner 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 Revolving Loan Agreement in place as of ▇▇▇▇▇, ▇▇, ▇▇▇▇, (▇) any Indebtedness described in clause (f) of the provisionsdefinition of Indebtedness, terms, or conditions (C) any liability pursuant to a Customary Nonrecourse Debt Guaranty until a claim is made with respect thereto (provided that for the purposes of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(ethis clause (v), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or violated this covenant with respect to any Guarantor, at any time or from time Indebtedness under a Customary Nonrecourse Debt Guaranty until a judgment is obtained with respect to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (claims under Customary Nonrecourse Debt Guaranties individually or in the case aggregate of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations$30,000,000 or greater), set-off and appropriate and apply (D) any liability pursuant to any portion of a springing guaranty on substantially the Obligations hereby guaranteed, and in such order of application same terms as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in Springing Guaranty; and provided further that the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” liability with respect to any Guarantor(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, LLC, solely by virtue of the Guarantor being the general partner of Borrower and not as a guarantor, shall mean be excluded from the maximum amount which could be paid by foregoing provided such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.liability is not increased; and
Appears in 1 contract
Guaranty. (a) Each Guarantor Borrower hereby unconditionally and irrevocably, guarantees (except to the Administrative Agent, for extent such guarantee is an Excluded Swap Obligation with respect such Borrower) to Lender:
(i) the benefit of due and punctual payment in full (and not merely the Lender Group, collectability) by the full and prompt payment other Borrowers of the Obligations, including any unpaid and accrued interest therein (including interest as provided thereon, in each case when due and payable, all according to the terms of this Agreement, accruing after the filing Notes and the other Financing Documents;
(ii) the due and punctual payment in full (and not merely the collectability) by the other Borrowers of a petition initiating all other sums and charges which may at any Insolvency Proceedingstime be due and payable in accordance with this Agreement, whether the Notes or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes any of the Bankruptcy Code or is an allowed claim other Financing Documents;
(iii) the due and punctual performance by the other Borrowers of all of the other terms, covenants and conditions contained in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromFinancing Documents; and
(iv) all the other Obligations of the other Borrowers.
(b) Regardless The obligations and liabilities of whether any proposed each Borrower as a guarantor or any other Person under this Section 2.5.8 shall become in any other way responsible to the Lender Groupbe absolute and unconditional and joint and several, or any of them, for or in respect irrespective of the Obligations genuineness, validity, priority, regularity or any part thereofenforceability of this Agreement, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations Notes or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all Financing Documents or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing other circumstance which might, but for this paragraph of this Guaranty, be deemed 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 by reason further assent of such Borrower and without in any waiverway releasing, omission affecting or in any way impairing the joint and several obligations and liabilities of the Lender Groupsuch Borrower as a guarantor hereunder:
(i) waive compliance with, or any of themdefaults under, or their failure grant any other indulgences under or with respect to proceed promptly any of the Financing Documents;
(ii) modify, amend, change or otherwise, or by reason terminate any provisions of any action taken of the Financing Documents;
(iii) grant extensions or omitted by renewals of or with respect to the Lender GroupCredit Facilities, the Notes or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.Financing Documents;
(fiv) The Lender Groupeffect any release, subordination, compromise or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or settlement in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance connection with this Agreement, any depositsof the Notes or any of the other Financing Documents;
(v) agree to the substitution, propertyexchange, balancesrelease or other disposition of the Collateral or any part thereof, credit accounts or moneys any other collateral for the Loan or to the subordination of any Guarantor lien or security interest therein;
(vi) make advances for the purpose of performing any term, provision or covenant contained in the possession of this Agreement, any member of the Lender Group Notes or under their respective control for any purpose. If 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 that permitted by the provisions of this Agreement;
(ix) deal in all respects with the other Borrowers as if this Section 2.5.8 were not in effect;
(x) effect any Guarantor makes release, compromise or settlement with any payment to of the Administrative Agent other Borrowers, whether in their capacity as a Borrower or as a guarantor under this Section 2.5.8, or any other Person pursuant 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 2.5.8, shall be primary, direct and immediate, shall not be subject to any counterclaim, recoupment, set off, reduction or in respect of this Guaranty, defense based upon any claim which such Guarantor 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, Lender shall not be required to make any demand upon any of Borrowers, or to sell the Collateral or otherwise pursue, enforce or exhaust its remedies against Borrowers or the Collateral either before, concurrently with or after pursuing or enforcing its rights and remedies hereunder. Any one or more successive or concurrent actions or proceedings may be brought against each Borrower under this Section 2.5.8, either in the same action, if any, brought against any one or more of Borrowers or in separate actions or proceedings, as often as Lender may deem expedient or advisable. Without limiting the foregoing, it is specifically understood that any modification, limitation or discharge of any of the liabilities or obligations of any one or more of Borrowers, any other guarantor or any obligor under any of the Financing Documents, arising out of, or by virtue of, any bankruptcy, arrangement, reorganization or similar proceeding for relief of debtors under federal or state law initiated by or against any one or more of Borrowers, in their respective capacities as borrowers and guarantors under this Section 2.5.8, 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 2.5.8 in any manner whatsoever, and this Section 2.5.8 shall remain and continue in full force and effect. It is the intent and purpose of this Section 2.5.8 that each Borrower shall and does hereby waive all rights and benefits which might accrue to any other guarantor by reason thereof of any such proceeding, and Borrowers agree that they shall be subject liable for the full amount of the obligations and subordinate to liabilities under this Section 2.5.8, regardless of, and irrespective to, any modification, limitation or discharge of the prior 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 2.5.8, hereby unconditionally, jointly and severally, irrevocably and expressly waives:
(i) presentment and demand for payment in full of the Obligations to and protest of non-payment;
(ii) notice of acceptance of this Section 2.5.8 and of presentment, demand and protest thereof;
(iii) notice of any default hereunder or under the satisfaction 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 2.5.8;
(v) demand for observance, performance or enforcement of any of the terms or provisions of this Section 2.5.8, the Notes or any of the other Financing Documents;
(vi) all errors and omissions in connection with Lender’s administration of all indebtedness guaranteed by this Section 2.5.8, except errors and omissions resulting from acts of bad faith;
(vii) any right or claim of right to cause a marshalling of the assets of any one or more of the other Borrowers;
(viii) any act or omission of Lender Groupwhich changes the scope of the risk as guarantor hereunder; and
(ix) all other notices and demands otherwise required by law which Borrower may lawfully waive. Within ten (10) days following any request of Lender so to do, each Borrower will furnish Lender and such other persons as Lender may direct with a written certificate, duly acknowledged stating in detail whether or not any credits, offsets or defenses exist with respect to this Section 2.5.8.
(ge) The creation or existence Each Borrower that is a Qualified ECP Guarantor (as defined below) hereby jointly and severally, absolutely, unconditionally and irrevocably undertakes to provide such funds and other support as may be needed from time to time by each other Credit Party to honor all of Obligations in excess of the amount committed to or outstanding on the date of its obligations under this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor Section 2.5.8 and the Administrative Agent other Financing Documents in respect of Swap Obligations (provided, however, that each Guarantor’s obligations hereunder Qualified ECP Guarantor shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean only be liable under this Section for the maximum amount which could of such liability that can be paid by such Guarantor hereby incurred without rendering its obligations under this Guaranty void Section, or otherwise under this Agreement or any other Financing Documents, voidable as would otherwise be held or determined by a court of competent jurisdiction in under Debtor Relief Laws and not for any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.greater
Appears in 1 contract
Sources: Financing and Security Agreement (Gp Strategies Corp)
Guaranty. (a) Each Subject to Section 1(b) hereof, Guarantor hereby absolutely, irrevocably and unconditionally guarantees to the Administrative Agentdue and punctual payment and performance when due, for the benefit whether at stated maturity, by acceleration or otherwise, of the following (collectively referred to as the “Guaranteed Obligations”): (1) all present and future indebtedness and obligations owing by Borrower to any Lender Groupor Administrative Agent under or in connection with the Credit Agreement and any other Loan Document, including without limitation, the full repayment of all principal of the Loans, and prompt the payment of the Obligationsall interest, including any interest therein (including interest as provided in this AgreementFees, accruing after the filing of a petition initiating any Insolvency Proceedingscharges, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if other amounts payable to any Lender or Administrative Agent thereunder or in connection therewith; (2) any and all extensions, renewals, modifications, amendments or substitutions of the obligations represented foregoing; (3) all expenses, including, without limitation, attorneys’ fees and disbursements, that are incurred by this Guaranty are collected by lawLenders and Administrative Agent in the enforcement of any of the foregoing; and (4) all other Obligations, through an attorney-at-lawprovided, however, that the Guaranteed Obligations shall not include any obligation of Borrower or any of its Subsidiaries under advice therefromany Interest Rate Agreement.
(b) Regardless of whether any proposed guarantor Notwithstanding anything contained in this Guaranty or any other Person shall become in any other way responsible Loan Document to the Lender Groupcontrary, or any the total liability of them, for or Guarantor hereunder in respect of the Guaranteed Obligations or any part thereofshall not exceed an amount equal to fifty percent (50%) of the total amount of the Guaranteed Obligations owed by Borrower to Administrative Agent and Lenders (the “Maximum Amount”) calculated at the time demand for payment from Guarantor is made by Administrative Agent hereunder (the “Demand Date”), subject to increase of the Guaranteed Obligations resulting from the application of Section 9 hereof.
(c) All expenses, including, without limitation, attorneys’ fees and regardless disbursements that are incurred by Lenders and Administrative Agent in the enforcement of whether or not any Person now or hereafter responsible to the Lender Group, or any obligations of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligationhereunder, shall be a continuing guaranty fully recoverable from the Guarantor.
(d) All expenses, including, without limitation, attorneys’ fees and disbursements, that are incurred by Lenders and Administrative Agent in connection with the Credit Agreement and any other Loan Document following the Demand Date (collectively, “Post Demand Date Expenses”) shall be operative recoverable from Guarantor; provided, however, total liability of Guarantor hereunder in respect of the Post Demand Date Expenses shall not exceed an amount equal to fifty percent (50%) of the total amount of Post Demand Date Expenses.
(e) Any amounts due from Guarantor to Administrative Agent or Lenders shall bear interest (i) in the case of amounts payable pursuant to Section 1(a) hereof, from the Demand Date, and binding (ii) in the case of amounts payable pursuant to Section 1(c) or (d) hereof, from the date that is thirty (30) days after Administrative Agent’s demand therefor, and in the case of all of the foregoing amounts, until the Obligations shall have been indefeasibly such amounts are paid in full at the highest rate then applicable to the Guaranteed Obligations.
(f) The Maximum Amount shall be applied to the Guaranteed Obligations as follows:
(i) Any payment by the Guarantor hereunder shall first be applied to reduce the aggregate amount of any draws on account of any issued and outstanding LCs which remain unreimbursed on the Demand Date.
(ii) Second, to the extent that any LCs remain outstanding on or after the Demand Date, then Guarantor shall do one or more of the following in respect of any such LC: (A) deliver to Administrative Agent cash collateral to secure the reimbursement obligations on account of such LC plus the aggregate amount of Letter of Credit Fees which will be due on account of such outstanding LC until the stated expiry date of such LC, (B) cause one or more back to back letter of credits to be issued to Administrative Agent naming Administrative Agent as beneficiary thereof for and on behalf of the Lenders, in an aggregate amount equal to the aggregate undrawn face amount of such LC; or (C) cause such LC to be cancelled by the beneficiary thereof and returned to the applicable LC Issuer. Guarantor shall be deemed to make a payment hereunder in an amount equal to the amount of cash collateral delivered pursuant to clause (A) above, the face amount of each back to back letter of credit delivered pursuant to clause (B) above and the aggregate undrawn face amount of each LC cancelled and returned to the applicable LC Issuer pursuant to clause (C) above. To the extent there are any draws under any LC or Letter of Credit Fees due thereon on or after the Demand Date, Administrative Agent shall apply the cash collateral delivered pursuant to clause (A) above to satisfy such reimbursement obligations or Letter of Credit Fees, and to the extent that any LC in respect of which Guarantor delivers cash collateral pursuant to clause (A) above expires or is cancelled (in whole or in part), then Administrative Agent shall return such cash collateral to Guarantor (or in the case of Letter a partial cancellation, the amount of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminatedsuch partial cancellation).
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(diii) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any remaining portion of the Maximum Amount, shall be applied to the Guaranteed Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of order and manner specified in the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupCredit Agreement.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Guaranty (Allied Capital Corp)
Guaranty. (a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, Guarantors unconditionally and irrevocably guarantees the full due and prompt punctual payment and performance by the Borrower of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) . Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to further agrees that the Obligations in any action may be extended or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be releasedrenewed, in whole or in part, without notice to or further assent from it, and it will remain bound upon this guaranty notwithstanding any extension or renewal of any of the Obligations. The Obligations of the Guarantors shall be joint and several.
(b) Each of the Guarantors waives presentation to, demand for payment from and protest to the Borrower or any other Guarantor, and also waives notice of protest for nonpayment. The Obligations of the Guarantors hereunder shall not be affected by (i) the failure of the Agent or a Bank to assert any action claim or thing which might, but for this paragraph demand or to enforce any right or remedy against the Borrower or any other Guarantor under the provisions of this Guaranty, be deemed a legal Agreement or equitable discharge of a surety any other Loan Document or guarantor, otherwise; (ii) any extension or by reason renewal of any provision hereof or thereof; (iii) any rescission, waiver, omission compromise, acceleration, amendment or modification of any of the Lender Groupterms or provisions of any of the Loan Documents; (iv) the release, exchange, waiver or foreclosure of any security held by the Agent for the Obligations or any of them; (v) the failure of the Agent or a Bank to exercise any right or remedy against any other Guarantor; or (vi) the release or substitution of any Guarantor or any other Guarantor.
(c) Each of the Guarantors further agrees that this guaranty constitutes a guaranty of performance and of payment when due and not just of collection, and waives any right to require that any resort be had by the Agent or a Bank to any security held for payment of the Obligations or to any balance of any deposit, account or credit on the books of the Agent or a Bank in favor of the Borrower or any other Guarantor, or their to any other Person.
(d) Each of the Guarantors hereby waives any defense that it might have based on a failure to proceed promptly remain informed of the financial condition of the Borrower and of any other Guarantor and any circumstances affecting the ability of the Borrower to perform under this Agreement.
(e) Each Guarantor's guaranty shall not be affected by the genuineness, validity, regularity or otherwiseenforceability of the Obligations, the Notes or any other instrument evidencing any Obli gations, or by reason the existence, validity, enforceability, perfection, or extent of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor collateral therefor or by reason of any further dealings between any Borrower, on other circumstance relating to the one hand, and any member Obligations which might otherwise constitute a defense to this Guaranty. Neither of the Lender GroupAgent, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, nor any of the foregoing acts, omissions, things, agreements Banks makes any representation or waiverswarranty in respect to any such circumstances or shall have any duty or responsibility whatsoever to any Guarantor in respect of the management and maintenance of the Obligations.
(f) The Lender GroupSubject to the provisions of Section 7.1, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be the Obligations becoming due and payable hereunder (by any Guarantoracceleration or otherwise), if Borrowers the Banks shall not have timely paid any be entitled to immediate payment of such Obligations by the Guarantors upon written demand by the Agent, without further application to or order of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupBankruptcy Court.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Marvel Entertainment Group Inc)
Guaranty. If any guaranty of all or a portion of the Obligations (a “Guaranty”) ceases for any reason to be in full force and effect, or any guarantor fails to perform or comply with any obligation or covenant under any Guaranty or a security agreement securing any Guaranty (collectively, the “Guaranty Documents”), or any event of default occurs under any Guaranty Document or any guarantor revokes or purports to revoke a Guaranty, or any material misrepresentation or material misstatement exists now or hereafter in any warranty or representation set forth in any Guaranty Document or in any certificate delivered to Bank in connection with any Guaranty Document, or if any of the circumstances described in Sections 8.3 through 8.8 occur with respect to any guarantor or any guarantor dies or becomes subject to any criminal prosecution.
10. Exhibit D to the Agreement is replaced in its entirety with the Exhibit D attached hereto.
11. The Exhibit F attached hereto is incorporated in its entirety as the Exhibit F to the Agreement.
12. Borrower represents and warrants that the representations and warranties contained in the Agreement are true and correct as of the date of this Amendment, and that except as set forth above, no Event of Default has occurred and is continuing.
13. Unless otherwise defined, all initially capitalized terms in this Amendment shall be as defined in the Agreement. The Agreement, as amended hereby, shall be and remain in full force and effect in accordance with its respective terms and hereby is ratified and confirmed in all respects. Except as expressly set forth herein, the execution, delivery, and performance of this Amendment shall not operate as a waiver of, or as an amendment of, any right, power, or remedy of Bank under the Agreement, as in effect prior to the date hereof. Borrower ratifies and reaffirms the continuing effectiveness of all agreements entered into in connection with the Agreement.
14. This Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one instrument. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original hereof. Notwithstanding the foregoing, Borrower shall deliver all original signed documents no later than ten (10) Business Days following the date of execution.
15. As a condition to the effectiveness of this Amendment, Bank shall have received, in form and substance satisfactory to Bank, the following:
(a) Each Guarantor hereby guarantees to the Administrative Agentthis Amendment, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented duly executed by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.Borrower;
(b) Regardless affirmation of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.subordination agreement executed by J▇▇▇▇ ▇. ▇▇▇▇▇▇;
(c) Each Guarantor absolutely, unconditionally affirmation of subordination agreement executed by M▇▇▇▇▇▇ ▇▇▇▇▇▇ and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.G▇▇▇▇▇▇ Rebel;
(d) The Lender Group, or any payment of them, may from time to time, without exonerating or releasing any Guarantor an amendment fee in any way under the amount of $15,000 plus reasonable Bank Expenses incurred in connection with this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.Amendment;
(e) Each Guarantor acknowledges and agrees that no change in Bank’s satisfactory due diligence calls with the nature or terms underwriters of the Obligations or any of the Loan DocumentsParent IPO; and such other documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations completion of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenantsother matters, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law as Bank may reasonably deem necessary or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waiversappropriate.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. Each Guarantor hereby absolutely, unconditionally and irrevocably
(a) Each Guarantor hereby guarantees the full and punctual payment when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, of all Obligations (which term as used herein in connection with the Borrower has the meaning provided in the Credit Agreements) of the Borrower under the Loan Documents (subject to the Administrative last sentence of this Section 2.1), whether for principal, interest, fees, expenses or otherwise (including all such amounts which would become due but for the operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code, 11 U.S.C. Section 362(a), and the operation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, 11 U.S.C. Section 502(b) and Section 506(b)), and
(b) indemnifies and holds harmless each Lender Party for any and all costs and expenses (including reasonable attorney's fees and expenses) incurred by such Lender Party or such holder, as the case may be, in enforcing any rights under this Guaranty. This Guaranty constitutes a guaranty of payment when due and not of collection, and each Guarantor specifically agrees that it shall not be necessary or required that any Lender Party exercise any right, assert any claim or demand or enforce any remedy whatsoever against the Borrower or any other Obligor (or any other Person) before or as a condition to the obligations of any Guarantor hereunder. At any time when an Event of Default (as defined in the Credit Agreements) is continuing, the Lender Parties or any one or more of them shall be entitled to immediate payment of the Obligations by any Guarantor on written demand for payment made by the Agent to such Guarantor. Notwithstanding anything in this Guaranty to the contrary, the recourse of the Lender Parties against each Guarantor under this Guaranty shall be limited solely to such Guarantor's ownership interests in Calpine Canada Energy Ltd., a Nova Scotia limited liability company ("CCEC") pledged to the Agent, for the benefit of the Lender GroupParties, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this pursuant to that certain Pledge Agreement, accruing after the filing dated as of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of even date herewith between the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waiversAgent.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Guaranty (Calpine Corp)
Guaranty. (a) Each Guarantor hereby guarantees to the Administrative Agent, for For the benefit of each Person to whom the Lender GroupLessee owes any payment or other obligation under the Operative Documents (each a "Guaranty Party"), -------------- Guarantor irrevocably and unconditionally guarantees the full and prompt payment when due (whether by acceleration or otherwise) of Lease Payments, 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 Lease Agreement and the Operative Documents binding on Lessee (all such payments, interest, obligations and liabilities, collectively, the "Guaranteed Obligations"). All payments by ----------------------- Guarantor under this guaranty shall be made on the same basis as payments by Lessee under the Operative Documents. Guarantor hereby waives notice of acceptance of this guaranty and notice of any liability to which it may apply, and waives presentment, demand of payment, protest, notice of dishonor or nonpayment of any such liability, suit or taking of other action by an Guaranty Party against, and any other notice to, any party liable thereon (including such Guarantor or any other guarantor). Any Guaranty Party may at any time and from time to time unless otherwise prohibited under the Operative Documents without the consent of, or notice to Guarantor, without incurring responsibility to Guarantor and without impairing or releasing the obligations of Guarantor hereunder, upon or without any terms or conditions and in whole or in part:
(a) change the manner, place or terms of payment of, and/or change or extend the time of payment of, renew or alter, any of the Guaranteed Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-lawsecurity therefor, or under advice therefrom.any liability incurred directly or indirectly in respect therof, and the guaranty herein made shall apply to the Guaranteed Obligations as so changed, extended, renewed or altered;
(b) Regardless of whether any proposed guarantor sell, exchange, release, surrender, realize upon or any other Person shall become otherwise deal with in any other way responsible manner and in any order any property by whomsoever at any time pledged or mortgaged to the Lender Groupsecure, or any of themhowsoever securing, for or in respect of the Guaranteed Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or liability is (including any of themthose hereunder) incurred directly or indirectly in respect thereof or hereof, for the Obligations or and/or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.offset there against;
(c) Each Guarantor absolutely, unconditionally and irrevocably waives exercise or refrain from exercising any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, rights against Lessee or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty others or otherwise with respect to the Obligations in any action act or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.refrain from acting;
(d) The Lender Group, settle or compromise any of themthe Guaranteed Obligations, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or liability (including any of them, those hereunder) incurred directly or (iii) amend, modify, extend, accelerate indirectly in respect thereof or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.hereof;
(e) Each Guarantor acknowledges and agrees that no change in the nature apply any sums by whomsoever paid or terms 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 Obligations Operative Documents or otherwise amend, modify or supplement any of the Operative Documents or any of the Loan Documents, or such other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and agreements. The obligations of such Guarantor pursuant to under this Guaranty; it being the purpose Section 8 are absolute and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any shall remain in full force and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performedeffect without regard to, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole suspended, discharged, terminated or in partotherwise affected by, by any circumstance or ocurrence whatsoever, including,without limitation (i) any action or thing which mightinaction by any Guaranty Party; or (ii) any invalidity, but for this paragraph irregularity or unenforceability of this Guaranty, be deemed a legal all or equitable discharge part of a surety the Guaranteed Obligations or guarantor, or by reason of any waiver, omission security therefor. The obligations under this Section 8 are primary obligations of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent any Guaranty Party or to any other Person pursuant to or in respect of this GuarantySection 8, any claim which such Guarantor may have against Borrowers Lessee by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations Guaranteed Obligations. The obligations under this Section 8 are continuing and all liabilities to which they apply or may apply under the satisfaction 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 Lender Group.
(g) holder of any Tranche A Note or Tranche B Note shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The creation or existence from time to time rights, powers and remedies herein expressly provided are cumulative and not exclusive of Obligations in excess of the amount committed any rights, powers and remedies which any Guaranty Party would otherwise have. No notice to or outstanding demand on the date of this Guaranty is hereby authorized, without notice Guarantor in any case shall entitle Guarantor to any Guarantor, and shall other further notice or demand in no way impair similar or affect this Guaranty other circumstances or constitute a waiver of the rights of any Guaranty Party to any other or further action in any circumstances without notice or demand. This guaranty shall continue to be effective, or be reinstated, as the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall case may be, but not in excess 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, the Maximum Guaranteed Amount (or trustee or similar officer for, Lessee or Guarantor or any substantial part of its property, all as herein defined). The “Maximum Guaranteed Amount” with respect though such payment had not been made and any statute of limitations in favor of Guarantor against any Guaranty Party relating to any Guarantorsuch amount to be restored or returned shall be tolled, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcydeemed to have been tolled, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorsextent 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 (BRL Universal Equipment Corp)
Guaranty. Each Designated Guarantor hereby jointly and severally, absolutely, unconditionally and irrevocably
(a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt punctual payment when due, whether at stated maturity, by required prepayment, declaration, acceleration, demand or otherwise, of all Obligations of the ObligationsBorrower and each other Obligor now or hereafter existing, including any interest therein whether for principal, interest, fees, expenses or otherwise (including interest as provided in this Agreement, accruing after all such amounts which would become due but for the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes operation of the automatic stay under Section 362(a) of the United States Bankruptcy Code or is an allowed claim in such proceedingCode, 11 U.S.C. ss.362(a), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by lawoperation of Sections 502(b) and 506(b) of the United States Bankruptcy Code, through an attorney-at-law11 U.S.C. ss.502(b) and ss.506(b)), or under advice therefrom.and
(b) Regardless indemnifies and holds harmless each Secured Party and each holder of whether a Note for any proposed guarantor and all costs and expenses (including reasonable attorney's fees and expenses) incurred by such Secured Party or such holder, as the case may be, in enforcing any rights under the guaranty set forth in this Article IX; provided, however, that (i) DRI I, with respect to its guaranty of the Obligations of Holdings, and (ii) each Affiliate Guarantor shall be liable under the guaranty set forth in this Article IX for the maximum amount of such liability that can be incurred without rending such guaranty, as it relates to such Designated Guarantor, voidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and not for any greater amount. The guaranty set forth in this Article IX constitutes a guaranty of payment when due and not of collection, and each Designated Guarantor specifically agrees that it shall not be necessary or required that any Secured Party or any holder of any Note exercise any right, assert any claim or demand or enforce any remedy whatsoever against the Borrower or any other Person shall become in Obligor (or any other way responsible Person) before or as a condition to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of each Designated Guarantor under the Guarantors under guaranty set forth in this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this GuarantyArticle IX.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. Each Domestic Loan Guarantor (aother than those that have delivered a separate Guaranty) Each Guarantor hereby agrees that it is jointly and severally liable for, and absolutely and unconditionally guarantees to the Administrative Agent, for the benefit of the Lender GroupLenders, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedingswhen due, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding)at stated maturity, plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty upon acceleration or otherwise, shall cease to be so liableand at all times thereafter, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter Secured Obligations and all costs and expenses including, without limitation, all court costs and attorneys’ and paralegals’ fees (including allocated costs of Credit Obligationsin-house counsel and paralegals) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, expenses paid or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought incurred by the Administrative Agent or any other member of Agents, the Lender Group Issuing Banks and the Lenders in endeavoring to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations Secured Obligations from, or in prosecuting any action against, any Borrower, any Domestic Loan Guarantor or any other guarantor of such Guarantor pursuant to this Guaranty; it being the purpose and intent all or any part of the Guarantors Secured Obligations (such costs and expenses, together with the Lender Group Secured Obligations, collectively the “Domestic Guaranteed Obligations”). Each Domestic Loan Guarantor further agrees that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law Domestic Guaranteed Obligations may be extended or otherwise, such Guarantor’s undertakings hereunder shall not be released, renewed in whole or in partpart without notice to or further assent from it, by and that it remains bound upon its guarantee notwithstanding any action such extension or thing which mightrenewal. Each Canadian Loan Guarantor (other than those that have delivered a separate Guaranty) hereby agrees that it is jointly and severally liable for, but for this paragraph of this Guarantyand absolutely and unconditionally guarantees to the Lenders, be deemed a legal or equitable discharge of a surety or guarantorthe prompt payment when due, or by reason of any waiverwhether at stated maturity, omission of the Lender Group, or any of them, or their failure to proceed promptly upon acceleration or otherwise, and at all times thereafter, of the Foreign Obligations (and not the Domestic 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 reason the Agents, the Issuing Banks and the Lenders in endeavoring to collect all or any part of the Foreign Obligations from, or in prosecuting any action taken or omitted by against, the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Canadian Borrower, on the one handany Canadian Loan Guarantor, and any member of the Lender Group, on the other hand, European Loan Guarantor or any other guarantor of all or suretyany part of the Foreign Obligations (such costs and expenses, together with the Secured Obligations, collectively the “Canadian Guaranteed Obligations”). Each Canadian Loan Guarantor further agrees that the Canadian Guaranteed Obligations may be extended or renewed in whole or in part without notice to or further assent from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal. Each European Loan Guarantor (other than those that have delivered a separate Guaranty) hereby expressly waives agrees that it is jointly and surrenders severally liable for, and absolutely and unconditionally guarantees to the Lenders, the prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of the Foreign Obligations (and not the Domestic Obligations) and all costs and expenses including, without limitation, all court costs and attorneys’ and paralegals’ fees (including allocated costs of in-house counsel and paralegals) and expenses paid or incurred by the Agents, the Issuing Banks and the Lenders in endeavoring to collect all or any defense to its liability hereunderpart of the Foreign Obligations from, or in prosecuting any right action against, the European Borrowers, any European Loan Guarantor, any Canadian Loan Guarantor or any other guarantor of counterclaim all or offset any part of the Foreign Obligations (such costs and expenses, together with the Secured Obligations, collectively the “European Guaranteed Obligations”). Each European Loan Guarantor further agrees that the European Guaranteed Obligations may be extended or renewed in whole or in part without notice to or further assent from it, and that it remains bound upon its guarantee notwithstanding any such extension or renewal. All terms of this Loan Guaranty apply to and may be enforced by or on behalf of any nature domestic or description which it may have foreign branch or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice Affiliate of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to Lender that extended any portion of the Domestic Guaranteed Obligations, the Canadian Guaranteed Obligations hereby guaranteedor the European Guaranteed Obligations. Notwithstanding anything contained herein to the contrary, the definition of each of “Domestic Guaranteed Obligations”, “Canadian Guaranteed Obligations” and in “European Guaranteed Obligations” shall not create any guarantee by any Loan Guarantor of (or grant of security interest by any Loan Guarantor to support, as applicable) any Excluded Swap Obligations of such order Loan Guarantor for purposes of application as the Administrative Agent may from time to time elect in accordance with this Agreement, determining any deposits, property, balances, credit accounts or moneys obligations of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupLoan Guarantor).
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. (a) Each Guarantor Borrower hereby unconditionally and irrevocably, guarantees to the Administrative Agent, for Lender:
(i) the benefit of due and punctual payment in full (and not merely the Lender Group, collectibility) by the full and prompt payment other Borrowers of the Obligations, including any unpaid and accrued interest therein (including interest as provided thereon, in each case when due and payable, all according to the terms of this Agreement, accruing after the filing Notes and the other Financing Documents;
(ii) the due and punctual payment in full (and not merely the collectibility) by the other Borrowers of a petition initiating all other sums and charges which may at any Insolvency Proceedingstime be due and payable in accordance with this Agreement, whether the Notes or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes any of the Bankruptcy Code or is an allowed claim other Financing Documents;
(iii) the due and punctual performance by the other Borrowers of all of the other terms, covenants and conditions contained in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefromFinancing Documents; and
(iv) all the other Obligations of the other Borrowers.
(b) Regardless The obligations and liabilities of whether any proposed each Borrower as a guarantor or any other Person under this Section 2.4.8 shall become in any other way responsible to the Lender Groupbe absolute and unconditional and joint and several, or any of them, for or in respect irrespective of the Obligations genuineness, validity, priority, regularity or any part thereofenforceability of this Agreement, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations Notes or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all Financing Documents or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing other circumstance which might, but for this paragraph of this Guaranty, be deemed might otherwise constitute a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of . Each Borrower in its capacity as a guarantor expressly agrees that the Lender Groupmay, 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 of themdefaults under, or their failure grant any other indulgences under or with respect to proceed promptly any of the Financing Documents;
(ii) modify, amend, change or otherwise, or by reason terminate any provisions of any action taken of the Financing Documents;
(iii) grant extensions or omitted by renewals of or with respect to the Lender GroupCredit Facilities, the Notes or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.Financing Documents;
(fiv) The Lender Groupeffect any release, subordination, compromise or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or settlement in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance connection with this Agreement, any depositsof the Notes or any of the other Financing Documents;
(v) agree to the substitution, propertyexchange, balances, credit accounts release or moneys other disposition of any Guarantor in collateral for the possession Loans or to the subordination of any member 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 Lender Group Notes or under their respective control for any purpose. If 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 that any Guarantor makes any payment to permitted by the Administrative Agent or any other Person pursuant to or in respect provisions of this Guaranty, any claim which such Guarantor may have against Agreement; (ix) deal in all respects with the other Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of as if this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but Section 2.4.8 were not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.effect;
Appears in 1 contract
Sources: Financing Agreement (Polk Audio Inc)
Guaranty. (a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, Guarantors unconditionally and irrevocably guarantees the full due and prompt punctual payment and performance by the Borrower of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) . Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to further agrees that the Obligations in any action may be extended or proceeding brought by the Administrative Agent or any other member of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be releasedrenewed, in whole or in part, by any action without notice to or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not further assent from such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or suretyGuarantor, and such Guarantor will remain bound upon this guaranty notwithstanding any extension or renewal of any of the Obligations. The obligations of the Guarantors under this Article VII shall be joint and several.
(b) Each of the Guarantors waives presentation to, demand for payment from and protest to the Borrower or any other Guarantor, and also waives notice of protest for nonpayment. The obligations of the Guarantors under this Article VII shall not be affected by (i) the failure of the Agents or any Lender to assert any claim or demand or to enforce any right or remedy against the Borrower or any other Guarantor under the provisions of any Loan Document or otherwise; (ii) any extension or renewal of any Loan Document; (iii) any rescission, waiver, compromise, acceleration, amendment or modification of any of the terms or provisions of any Loan Document; (iv) the release, exchange, waiver or foreclosure of any security held by the Agents or any Lender for the Obligations; (v) the failure of the Agents or any Lender to exercise any right or remedy against any other Guarantor; or (vi) the release or substitution of any Guarantor.
(c) Each of the Guarantors further agrees that its guaranty of the Obligations constitutes a guaranty of payment when due and not just of collection, and waives any right to require that any resort be had by the Agents or any Lender to (i) any security held for payment of the Obligations, (ii) any balance of any deposit, account or credit on the books of the Agents or any Lender in favor of the Borrower or any other Guarantor, or (iii) any other Guarantor or any other Person.
(d) Each of the Guarantors hereby expressly waives any defense that it might have based on a failure to remain informed of the financial condition of the Borrower and surrenders of any other Guarantor and any circumstances affecting the ability of the Borrower to perform under the Loan Documents.
(e) Each Guarantor's guaranty of the Obligations shall not be affected by the genuineness, validity, regularity or enforceability of the Obligations or any other instrument evidencing any Obligations, or by the existence, validity, enforceability, perfection or extent of any collateral therefore or by any other circumstance relating to the Obligations that might otherwise constitute a defense to its liability hereunderguaranty. Neither the Agents nor any Lender makes any representation or warranty in respect to any such circumstances, or shall have any right of counterclaim duty or offset of responsibility whatsoever to any nature or description which it may have or may exist based uponGuarantor, and shall be deemed to have consented to, any in respect of the foregoing acts, omissions, things, agreements or waiversmanagement and maintenance of the Obligations.
(f) The Lender GroupSubject to the provisions of Section 6.01, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be the Obligations becoming due and payable hereunder (by any Guarantormaturity, if Borrowers shall not have timely paid any of the Obligations (acceleration or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligationsotherwise), set-off the Agents and appropriate and apply Lenders shall be entitled to any portion immediate payment of such Obligations by the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to Guarantors upon written demand by the Administrative Agent or any other Person pursuant Managing Lender, without further application to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full order of the Obligations to the satisfaction of the Lender GroupBankruptcy Court.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Debtor in Possession Credit and Guaranty Agreement (Key3media Group Inc)
Guaranty. (a) Each The Guarantor hereby absolutely, unconditionally and irrevocably guarantees to the Administrative Agentpunctual payment when due, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including whether at scheduled maturity or on any interest therein (including interest as provided in this Agreement, accruing after the filing date of a petition initiating any Insolvency Proceedingsrequired prepayment or by acceleration, whether demand or not such interest accrues otherwise, of all Obligations of each other Loan Party now or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or hereafter existing under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations Loan Documents (collectively, the “Secured Documents”) (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any part thereofor all of the foregoing Obligations), whether direct or indirect, absolute or contingent, and regardless whether for principal, interest, premium, fees, indemnities, contract causes of whether action, costs, expenses or not any Person now or hereafter responsible to otherwise (such Obligations being the Lender Group“Guaranteed Obligations”), or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives pay any and all right to assert any defense expenses (other than the defense including, without limitation, fees and expenses of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowerscounsel) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought incurred by the Administrative Agent or any other member Secured Party in enforcing any rights under this Guaranty or any other Secured Document, to the extent reimbursable under Section 10.04 of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretionCredit Agreement. Without limiting the generality of the foregoing, the Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other Loan Party to any Secured Party under or in respect of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security Secured Documents but for the Obligations and accept fact that they are unenforceable or make any compositions not allowable due to the existence of a bankruptcy, reorganization or arrangements, and realize upon any security for the Obligations when, and in similar proceeding involving such manner, and with or without notice, all as such Person may deem expedientother Loan Party.
(eb) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performedThe Guarantor, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph its acceptance of this Guaranty, be deemed the Administrative Agent and each other Secured Party, hereby confirms that it is the intention of all such Persons that this Guaranty and the Obligations of the Guarantor hereunder not constitute a legal fraudulent transfer or equitable discharge of a surety or guarantor, or by reason conveyance for purposes of any waiverDebtor Relief Law (as hereinafter defined), omission the 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 the Lender GroupGuarantor hereunder. To effectuate the foregoing intention, or any of themthe Administrative Agent, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases other Secured Parties and the risk of, or affects Guarantor hereby irrevocably agree that the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member Obligations of the Lender Group, on Guarantor under this Guaranty at any time shall be limited to the other hand, maximum amount as will result in the Obligations of the Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance.
(c) The Guarantor hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any Secured Party under this Guaranty or the Subsidiary Guaranty or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense guaranty with respect to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Guaranteed Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations)Guarantor will contribute, set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the maximum extent that any Guarantor makes any payment permitted by applicable law, such amounts to each other guarantor so as to maximize the aggregate amount paid to the Administrative Agent or any other Person pursuant to Secured Parties under or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupSecured Documents.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Second Lien Holdings Guaranty (Syniverse Holdings Inc)
Guaranty. Each Borrower and each Guarantor, other than Subsidiaries that are Excluded Subsidiaries, severally, unconditionally and irrevocably guarantees (athe undertaking by each Borrower and each Guarantor under this Article VIII being the “Guaranty”) Each Guarantor hereby guarantees to the Administrative Agentpunctual payment when due, whether at scheduled maturity or at a date fixed for the benefit prepayment or by acceleration, demand or otherwise, all Cash Management Obligations of the Lender Group, Loan Parties and the full and prompt payment other Restricted Subsidiaries of the Borrowers, all Obligations under Secured Hedge Agreements but excluding all Excluded Swap Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing and all other Obligations of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes each of the Bankruptcy Code other Loan Parties and each Restricted Subsidiary now or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or hereafter existing under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Loan Documents (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing Obligations), whether direct or indirect, absolute or contingent, and whether for principal, interest, premium, fees, indemnification payments, contract causes of action, costs, expenses or otherwise (such Obligations being the “Guaranteed Obligations”); provided, that, endorsements of negotiable instruments for deposit or collection in the ordinary course of business are not Guaranteed Obligations for purposes of the foregoing Section 8.01; and provided, further, that notwithstanding anything herein to the contrary, (a) any Borrower that is a Foreign Subsidiary shall not guarantee the Obligations of D▇▇▇, any other Loan Party or any part thereofother Restricted Subsidiary other than the Obligations of any other Borrower that is a Foreign Subsidiary, and regardless (b) any Borrower that is a Foreign Subsidiary shall guarantee the Obligations of whether or not any Person now or hereafter responsible other Borrower that is a Foreign Subsidiary only to the Lender Groupextent such guarantee could not reasonably be expected to result in a material adverse tax consequence to Dana or one of its Subsidiaries (as determined in good faith by D▇▇▇), or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutelyany Guarantees by Foreign Subsidiaries shall be subject to any applicable general mandatory statutory limitations, unconditionally fraudulent preference, “thin capitalization” rules, exchange control restrictions, corporate benefit, financial assistance and irrevocably waives customary guarantee limitation language to be agreed by the Administrative Agent and D▇▇▇ in respect of the relevant jurisdiction and (d) any Guarantees by domestic Loan Parties of the Obligations of any Borrower that is a Foreign Subsidiary shall only be required to the extent such guarantee could not reasonably be expected to result in a material adverse tax consequence to Dana or one of its Subsidiaries (as determined in good faith by D▇▇▇), and agrees to pay any and all right to assert any defense expenses (other than the defense including, without limitation, reasonable fees and expenses of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowerscounsel) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought incurred by the Administrative Agent or any other member of the Lender Group to collect the Obligations or other Secured Parties solely in enforcing any portion thereof, or to enforce the obligations of any of the Guarantors rights under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees Borrower’s and each Guarantor’s respective liability shall extend to all amounts that until each and every one constitute part of the covenants Guaranteed Obligations and agreements of this Guaranty is fully performed, and without possibility of recourse, whether would be owed by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, other Loan Parties or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment Restricted Subsidiary to the Administrative Agent or any of the other Person pursuant to Secured Parties under or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate the Loan Documents but for the fact that they are unenforceable or not allowable due to the prior payment in full existence of the Obligations to the satisfaction of the Lender Group.
(g) The creation a bankruptcy, reorganization or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or similar proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or such other similar laws relating to the insolvency of debtorsLoan Party.
Appears in 1 contract
Guaranty. (a) Each The Guarantor hereby absolutely, unconditionally and irrevocably guarantees to the Administrative Agentpunctual payment when due, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including whether at scheduled maturity or on any interest therein (including interest as provided in this Agreement, accruing after the filing date of a petition initiating any Insolvency Proceedingsrequired prepayment or by acceleration, whether demand or not such interest accrues otherwise, of all Obligations of each other Loan Party now or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or hereafter existing under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations Loan Documents, any Secured Cash Management Agreement or any part thereofSecured Hedge Agreement (the Loan Documents, Secured Cash Management Agreements and Secured Hedge Agreements, collectively, the “Secured Documents”) (including, without limitation, any extensions, modifications, substitutions, amendments or renewals of any or all of the foregoing Obligations), whether direct or indirect, absolute or contingent, and regardless whether for principal, interest, premium, fees, indemnities, contract causes of whether action, costs, expenses or not any Person now or hereafter responsible to otherwise (such Obligations being the Lender Group“Guaranteed Obligations”), or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives pay any and all right to assert any defense expenses (other than the defense including, without limitation, fees and expenses of payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowerscounsel) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought incurred by the Administrative Agent or any other member Secured Party in enforcing any rights under this Guaranty or any other Secured Document, to the extent reimbursable under Section 10.04 of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretionCredit Agreement. Without limiting the generality of the foregoing, the Guarantor’s liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by any other Loan Party to any Secured Buccaneer Holdings Guaranty Party under or in respect of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security Secured Documents but for the Obligations and accept fact that they are unenforceable or make any compositions not allowable due to the existence of a bankruptcy, reorganization or arrangements, and realize upon any security for the Obligations when, and in similar proceeding involving such manner, and with or without notice, all as such Person may deem expedientother Loan Party.
(eb) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performedThe Guarantor, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph its acceptance of this Guaranty, be deemed the Administrative Agent and each other Secured Party, hereby confirms that it is the intention of all such Persons that this Guaranty and the Obligations of the Guarantor hereunder not constitute a legal fraudulent transfer or equitable discharge of a surety or guarantor, or by reason conveyance for purposes of any waiverDebtor Relief Law (as hereinafter defined), omission the 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 the Lender GroupGuarantor hereunder. To effectuate the foregoing intention, or any of themthe Administrative Agent, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases other Secured Parties and the risk of, or affects Guarantor hereby irrevocably agree that the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member Obligations of the Lender Group, on Guarantor under this Guaranty at any time shall be limited to the other hand, maximum amount as will result in the Obligations of the Guarantor under this Guaranty not constituting a fraudulent transfer or conveyance.
(c) The Guarantor hereby unconditionally and irrevocably agrees that in the event any payment shall be required to be made to any Secured Party under this Guaranty or the Subsidiary Guaranty or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense guaranty with respect to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Guaranteed Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations)Guarantor will contribute, set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the maximum extent that any Guarantor makes any payment permitted by applicable law, such amounts to each other guarantor so as to maximize the aggregate amount paid to the Administrative Agent or any other Person pursuant to Secured Parties under or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupSecured Documents.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Credit Agreement
Guaranty. Guarantor hereby unconditionally and irrevocably guarantees to Lessor that:
(a) Each Lessee will duly and punctually pay all lease rents, taxes, assessments, collection costs, attorneys’ fees and all other sums to be paid by Lessee under the Lease; and
(b) Lessee will duly and punctually observe and perform every other agreement, covenant and condition to be observed or performed by Lessee under the Lease (collectively, the “Obligations”). The obligations of Guarantor hereby guarantees under this Lease shall not be affected, modified or impaired upon the occurrence from time to time of any of the Administrative Agentfollowing, whether or not with notice to or the consent of Guarantor (a) the failure to give notice to any Guarantor of the occurrence of any Event of Default under the terms and provisions of this Lease; (b) the waiver of the payment, performance or observance of any of the Obligations; (c) the taking or omitting to take any actions referred to in this Lease; or (d) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all of the assets, marshalling of assets, receivership, insolvency, bankruptcy, assignment for the benefit of creditors or readjustment of, or other similar proceedings which affect Guarantor, or any allegation of invalidity or contest of the Lender Group, the full validity of this Lease or this Section 16.26 in any such proceeding. Guarantor hereby waives (a) any and prompt payment all rights to require Lessor to prosecute or seek to enforce any remedies against Lessee or any other party liable to Lessor on account of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
; (b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any and all right to assert against Lessor any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, legal or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)equitable), set-off, counterclaim counterclaim, or cross-claim of which Guarantor may now or at any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought by the Administrative Agent time hereafter have against Lessee or any other member of the Lender Group party liable to collect the Obligations Lessor in any way or any portion thereofmanner; (c) all defenses, or to enforce the obligations counterclaims and off-sets of any kind or nature, arising directly or indirectly from the present or future lack of the Guarantors under validity or enforceability of this Guaranty.
Lease; (d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or defense arising by reason of any waiverclaim or defense based upon an election of remedies by Lessor; and (e) all presentments, omission demands for performance, notices of the Lender Groupnon-performance, or any protests, notices of themprotest, or their failure to proceed promptly or otherwisenotices of dishonor, or by reason notices of any action taken or omitted by the Lender Groupdefault, or any notice of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one handacceptance, and any member of the Lender Group, on the all other hand, notices or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense formalities to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender Groupentitled.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Guaranty. (a) Each Guarantor hereby irrevocably and unconditionally covenants and agrees that it is liable for the Guaranteed Liabilities (as defined below) as a primary obligor and will fully perform each and every term and provision hereof. Guarantor absolutely, unconditionally and irrevocably guarantees to Lender the Administrative Agentfollowing (collectively, the “Guaranteed Liabilities”):
(i) the full and prompt payment, discharge and satisfaction of the entire principal amount of the Loan, whether at stated maturity, upon acceleration or otherwise; provided, however, notwithstanding the foregoing, in no event shall Guarantor’s aggregate liability for the benefit payment of principal under the Loan and the payment of principal under that certain loan to PGRT Equity LLC under that certain Amended and Restated Loan Agreement of even date herewith between PGRT Equity LLC and Lender Groupexceed $14,500,000; subject, however, to the provisions of Section 1(c) below;
(ii) the full and prompt payment of all interest on the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing Loan and Note when due irrespective of a petition initiating any Insolvency Proceedings, whether or not such interest accrues is payable by or is recoverable enforceable, or allowed or allowable, against Borrowers after Borrower in a bankruptcy or other insolvency proceeding involving Borrower as the filing debtor; and
(iii) the full and prompt payment of such petition for purposes of the Bankruptcy Code all Operating Expenses with respect to all Properties.
(b) Guarantor shall also be liable for, and shall indemnify, defend and hold Lender, its successors and assigns, and their respective shareholders, employees, officers, directors, affiliates and agents (each an “Indemnified Party”) harmless from and against, any and all loss, cost, expense, damage, claim or is an allowed claim in such proceeding)other obligation (including, plus without limitation, reasonable attorneys’ fees and expenses if costs of defense) incurred or suffered by Lender and arising out of or in connection with the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.following:
(bi) Regardless any breach of whether the Environmental Indemnity, Certification and Remediation Agreement executed by Borrower and Guarantor for the benefit of Lender, dated on or about the date hereof, including, without limitation, the indemnification provisions contained therein;
(ii) any proposed guarantor failure to comply with the provisions of the Loan Documents prohibiting subordinate financing or the sale, transfer or encumbrance of the Property or any direct or indirect ownership interest in Borrower or any Loan Party;
(iii) any application in violation of the Loan Documents or other misapplication by Borrower, its agents, affiliates, officers or employees of any funds derived from the Property, including security deposits, insurance proceeds and condemnation awards;
(iv) after the occurrence of an Event of Default or otherwise to the extent the Loan Documents require such application, Borrower’s failure to apply proceeds of rents (including rents collected in advance) or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or receipts in respect of the Obligations leases (lease termination and modification payments and recoveries upon defaulted leases) and other income or funds derived from the Property or any part thereof, and regardless of whether or not any Person now or hereafter responsible other collateral when received to the Lender Groupcosts of maintenance and operation of the Property and to the payment of taxes, lien claims, insurance premiums, monthly payments of principal and interest or escrow payments or other payments due under the Loan Documents;
(v) Borrower, Guarantor or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (Affiliate contests or in the case of Letter of Credit Obligationsany way interferes with, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutelydirectly or indirectly, unconditionally and irrevocably waives any and all right to assert any defense (other than the defense of payment in cash in full, to the extent of its obligations hereunder, foreclosure action or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim sale commenced by Lender or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person enforcement of Lender’s rights, powers or party (including Borrowers) relating to this Guaranty or the obligations of remedies under any of the Guarantors Loan Documents or under this Guaranty any document evidencing, securing or otherwise with respect relating to the Obligations in any action or proceeding brought by the Administrative Agent Property or any other member collateral for the Debt (whether by making any motion, bringing any counterclaim, claiming any defense, seeking any injunction or other restraint, commencing any action seeking to consolidate any such foreclosure or other enforcement with any other action, or otherwise), other than contests brought in good faith by Borrower upon which such Borrower ultimately prevails through a favorable court order in favor of Borrower;
(vi) the seizure or forfeiture of the Lender Group to collect the Obligations Property, or any portion thereof, or Lender’s interest therein, resulting from criminal wrongdoing by Borrower, its agents, affiliates, officers or employees;
(vii) in the event Lender has waived (or Borrower has failed to enforce pay or the obligations Mortgage does not require) the monthly collection for real and personal property taxes, assessments, insurance premiums, or ground rents, then failure by Borrower to pay any or all such taxes, assessments, premiums and rents;
(viii) waste of the Property;
(ix) any failure by Borrower to insure the Property in accordance with the Loan Documents;
(x) the removal or disposal of any portion of the Guarantors under this GuarantyProperty after an Event of Default to the extent such Property is not replaced by Borrower with like property of equivalent value, function and design;
(xi) any payments made by Borrower to any affiliated property manager or other Affiliate of Borrower after the occurrence and during the continuance of an Event of Default;
(xii) Borrower’s collection of Rents more than one month in advance or entering into or modifying Leases, or receipt of monies by Borrower or its Affiliates in connection with the modification of any Leases, in violation of the Mortgage; and
(xiii) any documentary stamp, intangibles tax, mortgage recording tax or other transfer or mortgage or mortgage debt taxes or fees or other similar taxes or fees charged upon any transfer of the Property to or by Borrower or upon the making of the loan evidenced by the Note or upon the Note or Mortgage or the recording or acceptance thereof, and any brokerage commission or finder’s fees claimed in connection with the transactions contemplated by the Loan Documents.
(c) Guarantor shall be liable for the full amount of the Debt (as defined in the Loan Agreement) in the event of:
(i) any fraud or material misrepresentation by Borrower or Guarantor in connection with the Loan;
(ii) any Voluntary Bankruptcy Event.; or
(iii) any purchase of a Senior Loan by Borrower, any other Loan Party or Guarantor.
(d) The Lender GroupGuarantor further hereby absolutely, or irrevocably and unconditionally guarantees payment of any of themand all fees, may from time to timecosts and expenses (including, without exonerating limitation, court costs, reasonable attorneys’ fees, costs and expenses) paid or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held incurred by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related endeavoring to or attendant with the Obligations (including any novation), shall discharge collect all or any part of the liabilities and obligations of such Guaranteed Liabilities from Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be released, in whole or in part, by enforcing any action or thing which might, but for this paragraph of this Guaranty, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiver, omission of the Lender Group, or any of them, or their failure to proceed promptly or otherwise, or by reason of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies ofunder this Guaranty (the “Enforcement Costs”) together with interest on such Enforcement Costs. The obligations of Guarantor under Section 1(a), such Guarantor or by reason of any further dealings between any Borrower(b), on (c) and (d) hereof are collectively referred to herein as the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements or waivers“Guaranteed Liabilities.”
(fe) The Lender Group, or any of them, may, Guaranty described in this Section 1 is made without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations defense (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior except only indefeasible payment in full of all of the Obligations to by the satisfaction Borrower in accordance with the Loan Documents (or Guarantor in accordance herewith)), offset, counterclaim or right of the Lender Group.
(g) The creation or existence from time to time subrogation, each of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty which is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorswaived.
Appears in 1 contract
Sources: Guaranty (Prime Group Realty Trust)
Guaranty. Each Loan Guarantor (aother than those that have delivered a separate Obligation Guaranty) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be it is jointly and severally liable for, and, as a joint primary obligor and several obligationnot merely as surety, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any guarantees to the Secured Parties, the prompt payment when due, whether at stated maturity, upon acceleration or otherwise, and at all times thereafter, of the Secured Obligations and all right to assert any defense (other than the defense of payment in cash in fullreasonable and invoiced costs and expenses, to the extent of its obligations hereunderincluding, without limitation, all court costs and reasonable and invoiced attorneys’ and paralegals’ fees and expenses paid or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought incurred by the Administrative Agent or any other member of Agent, the Lender Group Issuing Bank and the Lenders in endeavoring to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities for the Obligations or any part thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion. Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood that the Lender Group, or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities Secured Obligations from, or in prosecuting any action against, any Borrower, any Loan Guarantor or any other guarantor of all or any part of the Secured Obligations (such costs and expenses, together with the Secured Obligations, collectively the “Guaranteed Obligations”; provided, however, that the definition of “Guaranteed Obligations” shall not create any guarantee by any Loan Guarantor of (or grant of security interest by any Loan Guarantor to support, as applicable) any Excluded Swap Obligations of such Loan Guarantor for purposes of determining any obligations of such any Loan Guarantor). Each Loan Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group further agrees that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law Guaranteed Obligations may be extended or otherwise, such Guarantor’s undertakings hereunder shall not be released, renewed in whole or in partpart without notice to or further assent from it, by and that it remains bound upon its guarantee notwithstanding any action such extension or thing which might, but for this paragraph renewal. All terms of this GuarantyLoan 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 Guaranteed Obligations. Each Loan Guarantor further agrees that if payment in respect of any Secured Obligation shall be due in a currency other than Dollars and/or at a place of payment other than New York or any other Foreign Currency Payment Office and if, be deemed a legal or equitable discharge of a surety or guarantor, or by reason of any waiverChange in Law, omission disruption of the Lender Groupcurrency or foreign exchange markets, war or any civil disturbance or other event, payment of them, such Secured Obligation in such currency or their failure to proceed promptly or otherwise, or by reason at such place of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and payment shall be deemed to have consented to, any of the foregoing acts, omissions, things, agreements impossible or waivers.
(f) The Lender Group, or any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be due and payable hereunder by any Guarantor, if Borrowers shall not have timely paid any of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment disadvantageous to the Administrative Agent Agent, any Issuing Bank or any other Person pursuant to or Lender in respect of this Guarantyany material respect, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to then, at the prior payment in full election of the Obligations to Administrative Agent, such Loan Guarantor shall make payment of such Secured Obligation in Dollars (based upon the satisfaction of the Lender Group.
(g) The creation or existence from time to time of Obligations applicable Equivalent Amount in excess of the amount committed to or outstanding effect on the date of this Guaranty payment) and/or in New York or such other Foreign Currency Payment Office as is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and designated by the Administrative Agent that each Guarantor’s obligations hereunder shall beand, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantora separate and independent obligation, shall mean reimburse the maximum amount which could be paid by Administrative Agent, any Issuing Bank and any Lender against any losses or reasonable out-of-pocket expenses that it shall sustain as a result of such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtorsalternative payment.
Appears in 1 contract
Guaranty. (a) Each Guarantor hereby guarantees to the Administrative Agent, for the benefit of the Lender Group, the full and prompt payment of the Obligations, including any interest therein (including interest as provided in this Agreement, accruing after the filing of a petition initiating any Insolvency Proceedings, whether or not such interest accrues or is recoverable against Borrowers after the filing of such petition for purposes of the Bankruptcy Code or is an allowed claim in such proceeding), plus reasonable attorneys’ fees and expenses if the obligations represented by this Guaranty are collected by law, through an attorney-at-law, or under advice therefrom.
(b) Regardless of whether any proposed guarantor or any other Person shall become in any other way responsible to the Lender Group, or any of them, for or in respect of the Obligations or any part thereof, and regardless of whether or not any Person now or hereafter responsible to the Lender Group, or any of them, for the Obligations or any part thereof, whether under this Guaranty or otherwise, shall cease to be so liable, each Guarantor hereby declares and agrees that this Guaranty shall be a joint and several obligation, shall be a continuing guaranty and shall be operative and binding until the Obligations shall have been indefeasibly paid in full in cash (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations) and the Revolving Loan Commitment shall have been terminated.
(c) Each Guarantor absolutely, unconditionally and irrevocably waives any guarantees the due and all right to assert any defense (other than the defense of punctual payment in cash in full, to the extent of its obligations hereunder, or a defense that such Guarantor’s liability is limited as provided in Section 3.1(g)), set-off, counterclaim or cross-claim of any nature whatsoever with respect to this Guaranty or the obligations of the Guarantors under this Guaranty or the obligations of any other Person or party (including Borrowers) relating to this Guaranty or the obligations of any of the Guarantors under this Guaranty or otherwise with respect to the Obligations in any action or proceeding brought and performance by the Administrative Agent or Excluded Subsidiaries under any other member Letters of the Lender Group to collect the Obligations or any portion thereof, or to enforce the obligations of any of the Guarantors under this Guaranty.
(d) The Lender Group, or any of them, may from time to time, without exonerating or releasing any Guarantor in any way under this Guaranty, (i) take such further or other security or securities Credit issued for the Obligations or any part account thereof as they may deem proper, or (ii) release, discharge, abandon or otherwise deal with or fail to deal with any Guarantor of collectively the Obligations or any security or securities therefor or any part thereof now or hereafter held by the Lender Group, or any of them, or (iii) amend, modify, extend, accelerate or waive in any manner any of the provisions, terms, or conditions of the Loan Documents, all as they may consider expedient or appropriate in their sole and absolute discretion“Guaranteed Obligations”). Without limiting the generality of the foregoing, or of Section 3.1(e), it is understood The Borrowers further agree that the Lender Group, Guaranteed Obligations may be extended or any of them, may, without exonerating or releasing any Guarantor, give up, modify or abstain from perfecting or taking advantage of any security for the Obligations and accept or make any compositions or arrangements, and realize upon any security for the Obligations when, and in such manner, and with or without notice, all as such Person may deem expedient.
(e) Each Guarantor acknowledges and agrees that no change in the nature or terms of the Obligations or any of the Loan Documents, or other agreements, instruments or contracts evidencing, related to or attendant with the Obligations (including any novation), shall discharge all or any part of the liabilities and obligations of such Guarantor pursuant to this Guaranty; it being the purpose and intent of the Guarantors and the Lender Group that the covenants, agreements and all liabilities and obligations of each Guarantor hereunder are absolute, unconditional and irrevocable under any and all circumstances. Without limiting the generality of the foregoing, each Guarantor agrees that until each and every one of the covenants and agreements of this Guaranty is fully performed, and without possibility of recourse, whether by operation of law or otherwise, such Guarantor’s undertakings hereunder shall not be releasedrenewed, in whole or in part, without notice to or further assent from them, and they will remain bound upon this guaranty notwithstanding any extension or renewal of any of the Guaranteed Obligations.
(b) Each of the Borrowers waives presentation to, demand for payment from and protest to the Excluded Subsidiaries or the Borrowers, and also waives notice of protest for nonpayment. The Obligations of the Borrowers, as guarantors of the Guaranteed Obligations hereunder, shall not be affected by (i) the failure of the Administrative Agent or a Lender to assert any action claim or thing which might, but for this paragraph demand or to enforce any right or remedy against the Excluded Subsidiaries or the Borrowers under the provisions of this Guaranty, be deemed a legal Agreement or equitable discharge of a surety any other Loan Document or guarantor, otherwise; (ii) any extension or by reason renewal of any provision hereof or thereof; (iii) any rescission, waiver, omission compromise, acceleration, amendment or modification of any of the Lender Groupterms or provisions of any of the Loan Documents; (iv) the release, exchange, waiver or foreclosure of any security held by the Administrative Agent for the Guaranteed Obligations or any of them; (v) the failure of the Administrative Agent or a Lender to exercise any right or remedy against any other guarantor of the Guaranteed Obligations; or (vi) the release or substitution of any other guarantor of the Guaranteed Obligations.
(c) The Borrowers further agree that this guaranty constitutes a guaranty of performance and of payment when due and not just of collection, and waives any right to require that any resort be had by the Administrative Agent or a Lender to any security held for payment of the Guaranteed Obligations or to any balance of any deposit, account or credit on the books of the Administrative Agent or a Lender in favor of any Excluded Subsidiary or the Borrowers, or their to any other Person.
(d) The Borrowers hereby waive any defense that they might have based on a failure to proceed promptly remain informed of the financial condition of the Excluded Subsidiaries and any of the other Borrowers and any circumstances affecting the ability of the Excluded Subsidiaries or otherwisethe Borrowers to perform under this Agreement.
(e) The Borrowers’ guaranty shall not be affected by the genuineness, validity, regularity or enforceability of the Guaranteed Obligations or any other instrument evidencing any Obligations, or by reason the existence, validity, enforceability, perfection, or extent of any action taken or omitted by the Lender Group, or any of them, whether or not such action or failure to act varies or increases the risk of, or affects the rights or remedies of, such Guarantor collateral therefor or by reason of any further dealings between any Borrower, on the one hand, and any member of the Lender Group, on the other hand, or any other guarantor or surety, and such Guarantor hereby expressly waives and surrenders any circumstance relating to the Guaranteed Obligations which might otherwise constitute a defense to its liability hereunder, or any right of counterclaim or offset of any nature or description which it may have or may exist based upon, and shall be deemed to have consented to, this guaranty. Neither the Administrative Agent nor any of the foregoing acts, omissions, things, agreements Lenders makes any representation or waiverswarranty in respect to any such circumstances or shall have any duty or responsibility whatsoever to the Borrowers in respect of the management and maintenance of the Guaranteed Obligations.
(f) The Lender GroupSubject to the provisions of Section 7.01, or upon any of them, may, without demand or notice of any kind upon or to any Guarantor, at any time or from time to time when any amount shall be the Guaranteed Obligations becoming due and payable hereunder (by any Guarantoracceleration or otherwise), if the Lenders shall be entitled to immediate payment of such Guaranteed Obligations by the Borrowers shall not have timely paid any upon written demand by the Administrative Agent, without further application to or order of the Obligations (or in the case of Letter of Credit Obligations, secured through delivery of cash collateral in an amount equal to one hundred five percent (105%) of the Letter of Credit Obligations), set-off and appropriate and apply to any portion of the Obligations hereby guaranteed, and in such order of application as the Administrative Agent may from time to time elect in accordance with this Agreement, any deposits, property, balances, credit accounts or moneys of any Guarantor in the possession of any member of the Lender Group or under their respective control for any purpose. If and to the extent that any Guarantor makes any payment to the Administrative Agent or any other Person pursuant to or in respect of this Guaranty, any claim which such Guarantor may have against Borrowers by reason thereof shall be subject and subordinate to the prior payment in full of the Obligations to the satisfaction of the Lender GroupBankruptcy Court.
(g) The creation or existence from time to time of Obligations in excess of the amount committed to or outstanding on the date of this Guaranty is hereby authorized, without notice to any Guarantor, and shall in no way impair or affect this Guaranty or the rights of the Lender Group herein. It is the intention of each Guarantor and the Administrative Agent that each Guarantor’s obligations hereunder shall be, but not in excess of, the Maximum Guaranteed Amount (as herein defined). The “Maximum Guaranteed Amount” with respect to any Guarantor, shall mean the maximum amount which could be paid by such Guarantor without rendering this Guaranty void or voidable as would otherwise be held or determined by a court of competent jurisdiction in any action or proceeding involving any state or Federal bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or other similar laws relating to the insolvency of debtors.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Federal Mogul Corp)