Common use of Liability of Guarantors Absolute Clause in Contracts

Liability of Guarantors Absolute. The liability of each Guarantor hereunder is primary, absolute, joint and several, and unconditional and is exclusive and independent of any security for or other guaranty of the indebtedness of the Borrower or any other Guaranteed Party whether executed by such Guarantor, any other Guarantor, any other guarantor of the Guaranteed Obligations or by any other party, and the liability of each Guarantor hereunder shall not be affected or impaired by any circumstance or occurrence whatsoever until the occurrence of the Termination Date, including, without limitation: b) any direction as to application of payment by the Borrower, any other Guaranteed Party or any other party, c) any other continuing or other guaranty, undertaking or maximum liability of a Guarantor or of any other party as to the Guaranteed Obligations, d) any payment on or in reduction of any such other guaranty or undertaking, e) any dissolution, termination or increase, decrease or change in personnel by the Borrower or any other Guaranteed Party, f) any payment made to any Secured Creditor on the Guaranteed Obligations which any Secured Creditor repays the Borrower or any other Guaranteed Party pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and each Guarantor waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, g) any action or inaction by the Secured Creditors as contemplated in Section 5 hereof, h) any invalidity, rescission, irregularity or unenforceability of all or any part of the Guaranteed Obligations or of any security therefor, i) any extension, renewal, settlement, compromise, waiver or release in respect of any Guaranteed Obligation by operation of law or otherwise, j) any modification or amendment of or supplement to the Credit Agreement or any other Credit Document, k) any release, impairment, non-perfection or invalidity of any direct or indirect security for any Guaranteed Obligation, l) any change in the corporate existence, structure or ownership of the Borrower, any Guarantor or any other Person or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower, any Guarantor or any other Person or its assets or any resulting release or discharge of any Guaranteed Obligation, m) the existence of any claim, set-off or other rights which a Guarantor may have at any time against the Borrower, any other Guarantor, the Secured Creditors or any other entity, whether in connection herewith or with any unrelated transactions, provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim, n) any invalidity or unenforceability relating to or against the Borrower or any other Person for any reason of the Credit Agreement or any other Credit Document or any provision of applicable law or regulation purporting to prohibit the payment by the Borrower of principal, premium or interest on any loan made pursuant to, or any other amount payable pursuant to the Credit Agreement or any other Credit Document, o) any other act or omission to act or delay of any kind by the Borrower, any other Guaranteed Party or any other Person or any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute a legal or equitable discharge of or defense to the Guarantor’s obligations hereunder.

Liability of Guarantors Absolute. The liability Each Guarantor agrees that its obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows: this Guaranty is a guaranty of payment when due and not of collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety; Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default notwithstanding the existence of any dispute between Company and any Beneficiary with respect to the existence of such Event of Default; the obligations of each Guarantor hereunder is primary, absolute, joint are independent of the obligations of Company and severalthe obligations of any other guarantor (including any other Guarantor) of the obligations of Company, and unconditional a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is exclusive brought against Company or any of such other guarantors and independent whether or not Company is joined in any such action or actions; payment by any Guarantor of any security for or other guaranty a portion, but not all, of the indebtedness Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's liability for any portion of the Borrower or Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Administrative Agent is awarded a judgment in any other suit brought to enforce any Guarantor's covenant to pay a portion of the Guaranteed Party whether executed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guaranteed Obligations; any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guaranteed Obligations; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other guarantor obligations; (iii) request and accept other guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or by the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, 106 alter, subordinate or modify, with or without consideration, any other party, and the liability of each Guarantor hereunder shall not be affected or impaired by any circumstance or occurrence whatsoever until the occurrence security for payment of the Termination Date, including, without limitation: b) any direction as to application of payment by the BorrowerGuaranteed Obligations, any other guaranties of the Guaranteed Party Obligations, or any other party, c) obligation of any Person (including any other continuing or other guaranty, undertaking or maximum liability of a Guarantor or of any other party as Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, d) or exercise any payment other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent herewith or the applicable Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or in reduction more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other guaranty right or undertaking, e) remedy of any dissolution, termination or increase, decrease or change in personnel by the Borrower Guarantor against Company or any security for the Guaranteed Obligations; and (vi) exercise any other Guaranteed Party, f) any payment made rights available to it under the Credit Documents or the Hedge Agreements; and this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any Secured Creditor on the Guaranteed Obligations which reduction, limitation, impairment, discharge or termination for any Secured Creditor repays the Borrower or any reason (other Guaranteed Party pursuant to court order than payment in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and each Guarantor waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, g) any action or inaction by the Secured Creditors as contemplated in Section 5 hereof, h) any invalidity, rescission, irregularity or unenforceability of all or any part full of the Guaranteed Obligations or Obligations), including the occurrence of any security thereforof the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any extensionfailure or omission to assert or enforce or agreement or election not to assert or enforce, renewalor the stay or enjoining, settlementby order of court, compromise, waiver or release in respect of any Guaranteed Obligation by operation of law or otherwise, jof the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Credit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or amendment any consent to departure from, any of the terms or supplement provisions (including provisions relating to events of default) hereof, any of the other Credit Documents, any of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Credit DocumentDocuments or any of the Hedge Agreements or from the proceeds of any security for the Guaranteed Obligations, kexcept to the extent such security also serves as collateral for indebtedness other than the Guaranteed Obligations) to the payment of indebtedness other than the Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guaranteed Obligations; (v) any releaseBeneficiary's consent to the change, impairment, non-perfection reorganization or invalidity termination of any direct or indirect security for any Guaranteed Obligation, l) any change in the corporate existence, structure or ownership existence of the Borrower, any Parent Guarantor or any other Person of its Subsidiaries and to any corresponding restructuring of the Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any insolvency, bankruptcy, reorganization or other similar proceeding affecting collateral which secures any of the Borrower, Guaranteed Obligations; (vii) any Guarantor or any other Person or its assets or any resulting release or discharge of any Guaranteed Obligation, m) the existence of any claim107 defenses, set-off offs or other rights counterclaims which a Guarantor Company may have at allege or assert against any time against the Borrower, any other Guarantor, the Secured Creditors or any other entity, whether Beneficiary in connection herewith or with any unrelated transactions, provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim, n) any invalidity or unenforceability relating to or against the Borrower or any other Person for any reason respect of the Credit Agreement or any other Credit Document or any provision Guaranteed Obligations, including failure of applicable law or regulation purporting to prohibit the payment by the Borrower consideration, breach of principalwarranty, premium or interest on any loan made pursuant topayment, or any other amount payable pursuant to the Credit Agreement or any other Credit Documentstatute of frauds, ostatute of limitations, accord and satisfaction and usury; and (viii) any other act or omission thing or omission, or delay to do any other act or delay thing, which may or might in any manner or to any extent vary the risk of any kind by Guarantor as an obligor in respect of the Borrower, any other Guaranteed Party or any other Person or any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute a legal or equitable discharge of or defense to the Guarantor’s obligations hereunderObligations.

Liability of Guarantors Absolute. The liability of each Guarantor hereunder is primarypayment of the Guaranteed Obligations; (ii) settle, absolutecompromise, joint and severalrelease or discharge, and unconditional and is exclusive and independent or accept or refuse any offer of performance with respect to, or substitutions for, the Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any security for or other guaranty of the indebtedness of the Borrower or any obligations; (iii) request and accept other Guaranteed Party whether executed by such Guarantor, any other Guarantor, any other guarantor guaranties of the Guaranteed Obligations and take and hold security for the payment hereof or by the Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any other party, and the liability of each Guarantor hereunder shall not be affected or impaired by any circumstance or occurrence whatsoever until the occurrence security for payment of the Termination Date, including, without limitation: b) any direction as to application of payment by the BorrowerGuaranteed Obligations, any other guaranties of the Guaranteed Party Obligations, or any other party, c) obligation of any Person (including any other continuing or other guaranty, undertaking or maximum liability of a Guarantor or of any other party as Guarantor) with respect to the Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect hereof or the Guaranteed Obligations and direct the order or manner of sale thereof, d) or exercise any payment other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or in reduction more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other guaranty right or undertaking, e) remedy of any dissolution, termination or increase, decrease or change in personnel by the Borrower Guarantor against any other Issuer Party or any security for the Guaranteed Obligations; and (vi) exercise any other Guaranteed Party, frights available to it under the Transaction Documents; and (vi) any payment made this Guaranty and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to any Secured Creditor on the Guaranteed Obligations which reduction, limitation, impairment, discharge or termination for any Secured Creditor repays the Borrower or any reason (other Guaranteed Party pursuant to court order than payment in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and each Guarantor waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, g) any action or inaction by the Secured Creditors as contemplated in Section 5 hereof, h) any invalidity, rescission, irregularity or unenforceability of all or any part full of the Guaranteed Obligations or (other than contingent indemnification obligations for which no claim has been made)), including the occurrence of any security thereforof the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any extensionfailure or omission to assert or enforce or agreement or election not to assert or enforce, renewalor the stay or enjoining, settlementby order of court, compromise, waiver or release in respect of any Guaranteed Obligation by operation of law or otherwise, jof the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Transaction Documents, at law, in equity or otherwise) with respect to the Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or amendment any consent to departure from, any of the terms or supplement provisions (including provisions relating to events of default) hereof, any of the other Transaction Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Transaction Document or any agreement relating to such other guaranty or security; (iii) the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the Credit Agreement other Transaction Documents or any other Credit Document, k) any release, impairment, non-perfection or invalidity from the proceeds of any direct or indirect security for the Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guaranteed Obligations) to the payment of indebtedness other than the Guaranteed Obligations, even though any Guaranteed Obligation, l) Beneficiary might have elected to apply such payment to any change in the corporate existence, structure part or ownership all of the Borrower, any Guarantor or any other Person or any insolvency, bankruptcyGuaranteed Obligations; (v) the change, reorganization or other similar proceeding affecting termination of the Borrower, any Guarantor corporate structure or existence of the Note Obligors or any other Person or its assets or of their Subsidiaries and to any resulting release or discharge corresponding restructuring of any the Guaranteed Obligation, m) the existence of any claim, set-off or other rights which a Guarantor may have at any time against the Borrower, any other Guarantor, the Secured Creditors or any other entityObligations, whether in connection herewith or with not consented to by any unrelated transactions, provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim, nBeneficiary; (vi) any invalidity failure to perfect or unenforceability relating to or against the Borrower or continue perfection of a security interest in any other Person for any reason of the Credit Agreement or any other Credit Document or any provision of applicable law or regulation purporting to prohibit the payment by the Borrower of principal, premium or interest on any loan made pursuant to, or any other amount payable pursuant to the Credit Agreement or any other Credit Document, o) any other act or omission to act or delay of any kind by the Borrower, any other Guaranteed Party or any other Person or any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute a legal or equitable discharge of or defense to the Guarantor’s obligations hereunder.-33-

Liability of Guarantors Absolute. The liability of each Guarantor hereunder is primary, absolute, joint and several, and unconditional and is exclusive and independent of any security for or other guaranty of the indebtedness of the Borrower or any other Guaranteed Party whether executed by such Guarantor, any other Guarantor, any other guarantor of the Guaranteed Obligations or by any other party, and the liability of each Guarantor hereunder shall not be affected or impaired by any circumstance or occurrence whatsoever until the occurrence of the Termination Datewhatsoever, including, without limitation: b(a) any direction as to application of payment by the Borrower, any other Guaranteed Party or any other party, c(b) any other continuing or other guaranty, undertaking or maximum liability of a Guarantor or of any other party as to the Guaranteed Obligations, d(c) any payment on or in reduction of any such other guaranty or undertakingundertaking (other than any payment applied in satisfaction of the Guaranteed Obligations), e(d) any dissolution, termination or increase, decrease or change in personnel by the Borrower or any other Guaranteed Party, (e) the failure of the Guarantor to receive any benefit from or as a result of its execution, delivery and performance of this Guaranty, (f) any payment made to any Secured Creditor on the Guaranteed Obligations indebtedness which any Secured Creditor repays the Borrower or any other Guaranteed Party pursuant to court order in any bankruptcy, reorganization, arrangement, moratorium or other debtor relief proceeding, and each Guarantor waives any right to the deferral or modification of its obligations hereunder by reason of any such proceeding, (g) any action or inaction by the Secured Creditors as contemplated in Section 5 hereof, (h) any invalidity, rescission, irregularity or unenforceability of all or any part of the Guaranteed Obligations or of any security therefor, therefore and (i) any extension, renewal, settlement, compromise, waiver or release in respect of any Guaranteed Obligation by operation of law or otherwise, j) any modification or amendment of or supplement to the Credit Agreement or any other Credit Document, k) any release, impairment, non-perfection or invalidity of any direct or indirect security for any Guaranteed Obligation, l) any change in the corporate existence, structure or ownership of the Borrower, any Guarantor or any other Person or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower, any Guarantor or any other Person or its assets or any resulting release or discharge of any Guaranteed Obligation, m) the existence of any claim, set-off or other rights which a Guarantor may have at any time against the Borrower, any other Guarantor, the Secured Creditors or any other entity, whether in connection herewith or with any unrelated transactions, provided that nothing herein shall prevent the assertion of any such claim by separate suit or compulsory counterclaim, n) any invalidity or unenforceability relating to or against the Borrower or any other Person for any reason of the Credit Agreement or any other Credit Document or any provision of applicable law or regulation purporting to prohibit the payment by the Borrower of principal, premium or interest on any loan made pursuant to, or any other amount payable pursuant to the Credit Agreement or any other Credit Document, o) any other act or omission to act or delay of any kind by the Borrower, any other Guaranteed Party or any other Person or any other circumstance whatsoever which might, but for the provisions of this paragraph, constitute a legal or equitable discharge of or defense to the Guarantor’s obligations hereunderequity defenses, including suretyship defenses.