Guaranteed Obligations. (a) The Investor hereby agrees that (i) concurrently with the execution and delivery of this Agreement, it shall execute and deliver to the Company a Limited Guaranty in favor of the Company pursuant to which the Investor shall agree to guarantee the payment of the Investor’s Guaranteed Percentage (as defined in its applicable Limited Guaranty) of the Guaranteed Obligations, on the terms and subject to the conditions set forth in its applicable Limited Guaranty, and (ii) subject to Section 6.10(e), it shall comply with its obligations under its applicable Limited Guaranty. (b) The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any of them is) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b) and Section 6.10(e), in the event that the Company does not enforce all the Limited Guaranties contemporaneously, the Investor shall contribute from time to time to the amount paid or payable by other Guarantors in respect of the Limited Guaranties (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by the Company of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination of this Agreement pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall not solicit from the Company, or permit the Company to give, any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same manner. (c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Fee.
Appears in 1 contract
Guaranteed Obligations. Create, incur, assume or permit to exist, or permit any of its Subsidiaries to create, incur, assume or permit to exist, any Guaranteed Obligations except
(a) The Investor hereby agrees that (i) concurrently with the execution and delivery by endorsement of this Agreement, it shall execute and deliver instruments or items of payment for deposit to the Company a Limited Guaranty general account of any Loan Party;
(b) for Guaranteed Obligations existing on the date hereof and set forth on Schedule 6.18;
(c) guarantees by the Borrower or its Subsidiaries of Debt expressly permitted under Section 6.2; provided, that guarantees of Subordinated Debt shall be subordinated on substantially similar terms; 108 ▇▇▇
(▇) ▇▇▇ Borrower and its Subsidiaries may become and remain liable with respect to contingent obligations in the form of customary indemnifications for agents, employees, consultants, officers and directors of such Loan Party;
(e) the Borrower and the Subsidiaries may become and remain liable with respect to contingent obligations in the form of customary and reasonable indemnification provisions or customary purchase price adjustments (based on post-closing audit adjustments) incurred in connection with acquisitions or sales or assets permitted hereunder to be made by the Borrower or any Subsidiary;
(f) the Borrower and its Subsidiaries may become and remain liable with respect to guarantees in favor of the Company Lenders and the Agent executed and delivered pursuant to which the Investor shall agree to guarantee the payment of the Investor’s Guaranteed Percentage (as defined in its applicable Limited Guaranty) of the Guaranteed Obligations, on the terms and subject to the conditions set forth in its applicable Limited Guaranty, and (ii) subject to Section 6.10(e), it shall comply with its obligations under its applicable Limited Guaranty.hereto;
(bg) for performance, surety, bid, appeal and other similar bonds as expressly permitted under Section 6.1 or the definition of Permitted Liens;
(h) The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any of them is) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b) Borrower and Section 6.10(e), in the event that the Company does not enforce all the Limited Guaranties contemporaneously, the Investor shall contribute from time to time to the amount paid or payable by other Guarantors Subsidiaries may incur Guaranteed Obligations in respect of employment arrangements and other compensation arrangements entered into in connection with Permitted Acquisitions or otherwise in the Limited Guaranties ordinary course of business;
(i) The Borrower may incur Guaranteed Obligations in respect of obligations of Subsidiary Guarantors arising in the ordinary course of business;
(j) Subsidiary Guarantors may incur Guaranteed Obligations in respect of obligations of the Borrower or other than any such amount paid or payable by a Guarantor solely Subsidiary Guarantors arising from such Guarantor’s breach in the ordinary course of business;
(k) the Borrower and its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always paid Subsidiaries may incur Guaranteed Obligations in an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (together with the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by the Company of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination of this Agreement Debt incurred pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall 6.2(c)(xiii) not solicit from the Company, or permit the Company to give, exceed $15,000,000 at any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same mannerone time outstanding.
(c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Fee.
Appears in 1 contract
Guaranteed Obligations. Create, incur, assume or permit to exist, or permit any of its Subsidiaries to create, incur, assume or permit to exist, any Guaranteed Obligations except
(a) The Investor hereby agrees that (i) concurrently with the execution and delivery by endorsement of this Agreement, it shall execute and deliver instruments or items of payment for deposit to the Company a Limited Guaranty general account of any Loan Party;
(b) for Guaranteed Obligations existing on the date hereof and set forth on Schedule 6.18;
(c) guarantees by the Borrower or its Subsidiaries of Debt expressly permitted under Section 6.2; provided, that guarantees of Subordinated Debt shall be subordinated on substantially similar terms;
(d) the Borrower and its Subsidiaries may become and remain liable with respect to contingent obligations in the form of customary indemnifications for agents, employees, consultants, officers and directors of such Loan Party;
(e) the Borrower and the Subsidiaries may become and remain liable with respect to contingent obligations in the form of customary and reasonable indemnification provisions or customary purchase price adjustments (based on post-closing audit adjustments) incurred in connection with acquisitions or sales or assets permitted hereunder to be made by the Borrower or any Subsidiary;
(f) the Borrower and its Subsidiaries may become and remain liable with respect to guarantees in favor of the Company Lenders and the Agent executed and delivered pursuant to which the Investor shall agree to guarantee the payment of the Investor’s Guaranteed Percentage (as defined in its applicable Limited Guaranty) of the Guaranteed Obligations, on the terms and subject to the conditions set forth in its applicable Limited Guaranty, and (ii) subject to Section 6.10(e), it shall comply with its obligations under its applicable Limited Guaranty.hereto;
(bg) The Investor shall reasonably cooperate in defending any claim that for performance, surety, bid, appeal and other similar bonds as expressly permitted under Section 6.1 or the Guarantors are definition of Permitted Liens;
(or any of them ish) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b) Borrower and Section 6.10(e), in the event that the Company does not enforce all the Limited Guaranties contemporaneously, the Investor shall contribute from time to time to the amount paid or payable by other Guarantors Subsidiaries may incur Guaranteed Obligations in respect of employment arrangements and other compensation arrangements entered into in connection with Permitted Acquisitions or otherwise in the Limited Guaranties ordinary course of business;
(i) the Borrower may incur Guaranteed Obligations in respect of obligations of Subsidiary Guarantors arising in the ordinary course of business;
(j) Subsidiary Guarantors may incur Guaranteed Obligations in respect of obligations of the Borrower or other than any such amount paid or payable by a Guarantor solely Subsidiary Guarantors arising from such Guarantor’s breach in the ordinary course of business;
(k) the Borrower and its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always paid Subsidiaries may incur Guaranteed Obligations in an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (together with the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by the Company of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination of this Agreement Debt incurred pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall 6.2(c)(xiii) not solicit from the Company, or permit the Company to give, exceed $22,500,000 at any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same mannerone time outstanding.
(c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Fee.
Appears in 1 contract
Sources: Credit Agreement (Team Health Inc)
Guaranteed Obligations. (a) The Investor Subject to the terms hereof, the Guarantor does hereby agrees that irrevocably and unconditionally guarantee to the Beneficiaries entitled thereto, as a primary obligor and not as a surety, until such time as final and indefeasible payment thereof has been made, the due and punctual payment by Deepwater, when due, whether by acceleration or otherwise, of (i) concurrently with fifty percent (50%) of the execution Purchase Option Price due by Deepwater under Sections 20.1 or 16.2(h) of the Charter, (ii) fifty percent (50%) of the Residual Guarantee Amount due by Deepwater under Section 20.3 of the Charter, (iii) fifty percent (50%) of the amount of any premium payable under any policy of insurance required to be maintained by Deepwater under Section 14.1 of the Charter, (iv) fifty percent (50%) of any Claims and delivery Tax Claims due by Deepwater pursuant to Section 10 of this the Participation Agreement, it shall execute and deliver (v) fifty percent (50%) of the amount due by Deepwater to the Company a Limited Guaranty in favor Charter Trustee under the Deepwater Hedging Agreements (if any) upon the occurrence of the Company pursuant to which the Investor shall agree to guarantee the payment of the Investor’s Guaranteed Percentage an "Early Termination Date" (as defined in its applicable Limited Guarantythe Deepwater Hedging Agreements) in connection with an Event of Loss during the Charter Term and (vi) fifty percent (50%) of any installment of Basic Hire due by Deepwater under Section 3.1 of the Guaranteed ObligationsCharter during the period after the Scheduled Charter Expiration Date (or, on if the terms and subject Charter Term has been extended pursuant to Section 19.1 of the Charter after the end of such extension period) until the earlier of (A) the transfer of the risk of loss with respect to the conditions set forth in its applicable Limited Guaranty, Drillship to a purchaser under an agreement for sale of the Drillship and (iiB) subject to the redelivery of the Drillship in accordance with Section 6.10(e), it shall comply with its obligations under its applicable Limited Guaranty18.1 of the Charter.
(b) The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any of them is) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b) Guarantor hereby indemnifies and Section 6.10(e), in the event that the Company does not enforce all the Limited Guaranties contemporaneously, the Investor shall contribute from time to time to the amount paid or payable by other Guarantors in respect holds harmless each of the Limited Guaranties (other than Beneficiaries for any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always paid an aggregate amount and all costs and expenses (including contributions made pursuant to this Section 6.9 reasonable attorney's fees and expenses) incurred by such Guarantor or its applicable Affiliate and amounts paid Beneficiary in enforcing any rights under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited this Guaranty), but net of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by the Company of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination of this Agreement pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall not solicit from the Company, or permit the Company to give, any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same manner.
(c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Fee.
Appears in 1 contract
Sources: Guaranty (R&b Falcon Corp)
Guaranteed Obligations. (a) The Investor hereby agrees Subject to Section 11.3, each Guarantor unconditionally and irrevocably guarantees the due and punctual payment, performance, and discharge by such Guarantor’s respective Guaranteed Entity’s obligations under this Agreement (the “Guaranteed Obligations”) and promises to pay on demand each sum that (i) concurrently with the execution and delivery of this Agreement, it shall execute and deliver such Guaranteed Entity is liable to the Company a Limited Guaranty in favor of the Company pursuant to which the Investor shall agree to guarantee the payment of the Investor’s Guaranteed Percentage (as defined in its applicable Limited Guaranty) of pay under the Guaranteed Obligations, on the terms and subject to the conditions set forth in its applicable Limited Guaranty, and (ii) subject to Section 6.10(e), it shall comply with its obligations under its applicable Limited Guaranty.
(b) The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any of them is) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b) and Section 6.10(e), in the event that the Company does not enforce all the Limited Guaranties contemporaneously, the Investor shall contribute from time to time Without prejudice to the amount paid or payable by other Guarantors in respect rights of the Limited Guaranties (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations party under such Guarantor’s Limited Guaranty) so that after such contributionsthis Agreement, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate be a primary obligor and amounts paid under its Limited Guaranty (other than any such amount paid or payable by shall be deemed a Guarantor solely arising from principal debtor in respect of such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by Guaranteed Obligations and not a fraction, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by the Company of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination of this Agreement pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall not solicit from the Company, or permit the Company to give, any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same mannersurety.
(c) Subject Any number of demands may be made of any Guarantor under this Article 12.
(d) No Guarantor’s liability shall be discharged, impaired or affected by:
(1) any legal limitation, disability or incapacity or other circumstances relating to such Guarantor’s Guaranteed Entity or any change in the members or status of such Guaranteed Entity or any other person;
(2) any variation of any of the terms of this Agreement or of any of the Guaranteed Obligations;
(3) any time, waiver or consent granted to or composition with such Guarantor’s Guaranteed Entity or any other person;
(4) the liquidation or dissolution of such Guarantor’s Guaranteed Entity or the appointment of a liquidator, receiver, administrative receiver or administrator of any of such Guaranteed Entity’s assets or any other insolvency proceeding relating to such Guaranteed Entity or any other matter affecting the obligation of such Guaranteed Entity to perform any Guaranteed Obligation;
(5) any unenforceability, illegality or invalidity of any obligation of any person under this Agreement; or
(6) any other matter which, but for this Section 6.11 and Section 7.1(d12.2(d), would reduce, vitiate or affect the obligations of such Guarantor in respect of the event Guaranteed Obligations.
(e) Until all of a Guarantor’s Guaranteed Obligations have been unconditionally and irrevocably discharged, such Guarantor agrees that it will not make demand for the payment of any increase sum from such Guarantor’s Guaranteed Entity connected with or in relation to the amount sum demanded another party hereto or claim any set-off or counterclaim against such Guaranteed Entity.
(f) Each Guarantor further agrees that if any payment received by another party hereto from such Guarantor in relation to its Guaranteed Obligations is avoided or set aside on the subsequent insolvency or liquidation of Parent Termination Feesuch Guarantor’s Guaranteed Entity and is subsequently repaid, each Investor shallsuch payment shall not discharge or diminish the liability of such Guarantor for its Guaranteed Obligations and this Article 12 shall apply as if such payment had at all times remained owing by such Guaranteed Entity.
(g) Notwithstanding anything to the contrary in this Article 12, if requested by Parent, agree any defense to an amendment, restatement or replacement payment of any Guaranteed Obligations available to a Guaranteed Entity that has been expressly provided for in this Agreement shall also be available to such InvestorGuaranteed Entity’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination FeeGuarantor.
Appears in 1 contract
Sources: Equity Purchase Agreement (Piper Jaffray Companies)
Guaranteed Obligations. The payment and performance obligations set forth below in this Section 1, and including any limitations thereon as set forth in Section 1(c) are hereinafter collectively referred to as the "Guaranteed Obligations"
(a) The Investor Guarantor hereby agrees that unconditionally and irrevocably guarantees to Lender the punctual payment when due, whether by lapse of time, by acceleration of maturity, or otherwise, and at all times thereafter, of all principal, interest (including interest accruing after the commencement of any bankruptcy or insolvency proceeding by or against Borrowers, whether or not allowed in such proceeding), fees, costs, expenses, indemnification indebtedness, and other sums of money now or hereafter due and owing pursuant to (i) concurrently with the execution terms of the Notes, the Deeds of Trust, and delivery the other Loan Documents, including the making of this Agreement, it shall execute and deliver any deposits required or contemplated to be made by Borrowers pursuant to the Company a Limited Guaranty Deeds of Trust, the provision of any additional collateral, and any indemnifications contained in favor of the Company pursuant to which the Investor shall agree to guarantee the payment of the Investor’s Guaranteed Percentage (as defined in its applicable Limited Guaranty) of the Guaranteed Obligationssuch Loan Documents, on the terms and subject to the conditions set forth in its applicable Limited Guarantynow or hereafter existing, and (ii) subject all renewals, extensions, refinancings, modifications, supplements or amendments of such indebtedness or any part thereof (the indebtedness described in CLAUSES (i) AND (ii) above in this SECTION 1 is herein collectively called the "INDEBTEDNESS") subject, however, to Section 6.10(e)the limitations of SECTION 1(b) hereof. This Guaranty covers the Indebtedness, it shall comply with its obligations under its applicable Limited Guarantywhether presently outstanding or arising subsequent to the date hereof, including all amounts advanced by Lender in stages or installments. The guaranty of Guarantor as set forth in this SECTION 1 is a continuing guaranty of payment and performance, and not a guaranty of collection.
(b) The Investor Guarantor additionally hereby unconditionally and irrevocably guarantees to Lender the timely performance of all other obligations of Borrowers under the Notes, the Deeds of Trust, or under any other the Loan Documents. If any of the Guaranteed Obligations are not complied with, in any respect whatsoever, Guarantor agrees to indemnify and hold Lender harmless from any and all loss, cost, liability or expense that Lender may suffer by any reason of any such non-compliance. Lender shall reasonably cooperate in defending any claim accept performance by Guarantor of Guaranteed Obligations, and so long as all of the Guaranteed Obligations are being performed by Borrower or Guarantor and no Default exists, Lender will make the Loan proceeds available under and subject to the terms of the Notes and the Deeds of Trust.
(c) Guarantor acknowledges and agrees that the Guarantors are (or any liability of them isGuarantor with respect to the payment and performance obligations described in Sections 1(a) liable to make payments and 1(b) hereinabove arising under the four deeds of trust listed as items C.10.-C.13. hereinabove (collectively, the "Unlimited Guaranty Deeds of Trust") is unlimited. Except as otherwise set forth in SECTION 1(d) hereinbelow, the liability of Guarantor for the Guaranteed Obligations arising under the nine deeds of trust listed as items C.1. through C.9. hereinabove (collectively, the "Limited Guaranties. Subject Guaranty Deeds of Trust") shall not exceed payment of twenty-five percent (25%) of the principal of the Notes secured by such Limited Guaranty Deeds of Trust, together with (i) interest on the full amount of such Notes and (ii) any other debt service required pursuant to Section 6.10(b) and Section 6.10(e)such Notes; provided, however, in the event that the Company does not enforce all term of the Limited Guaranties contemporaneously, the Investor shall contribute from time to time Loan is extended pursuant to the amount paid or payable by other Guarantors in respect terms of the Notes, and if, after such extension, any one or more of the Mortgaged Properties secured by a Limited Guaranties Guaranty Deed of Trust fails to comply with the minimum Debt Coverage Ratio set forth in the Notes (each such property being hereinafter referred to as "Noncomplying Mortgaged Property"), then either (x) Guarantor shall cause the principal due under the Note for such Noncomplying Mortgaged Property to be reduced so that the Noncomplying Mortgaged Property is able to again comply with the Debt Coverage Ratio requirement or (y) the Deed of Trust for such Noncomplying Mortgaged Property shall automatically and without further action by Lender or any Guarantor become an Unlimited Guaranty Deed of Trust, and Guarantor shall be fully liable for all Guaranteed Obligations thereunder.
(d) The limitations on Guarantor liability set forth in SECTION 1(c) hereinabove shall not apply to any costs, losses, expenses or fees, including but not limited to court costs or attorney's fees, incurred, suffered or occasioned by the Lender as a consequence of any one or more of the following:
(i) Borrower's failure to pay taxes, assessments and other than similar charges which could result in liens against any portion of the property covered by the Deed of Trust or the other Loan Documents; provided, however, that the escrow of taxes and assessments with Lender shall be deemed a payment for such taxes, assessments and other similar charges to the extent actually paid;
(ii) Borrower's failure to pay and discharge any mechanic's liens, materialmen's liens or similar liens against any portion of the property covered by the Deed of Trust or the other Loan Documents; provided, however, that Borrower has the right to contest any such amount paid liens and to either bond around same or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts same paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) payment and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except performance bonds supplied in connection with a release the construction contract;
(iii) Fraud, any material misrepresentation of any fact by Borrower at the time when made or waste of any property covered by the Company Deed of Trust or the other Loan Documents;
(iv) Retention by the Borrower of any Guarantor from its liabilities rental income or other income received with respect to any property covered by the Deed of Trust or the other Loan Documents which, under the terms thereof, should have been paid to the Lender;
(v) Misapplication by Borrower of insurance proceeds, condemnation awards or other similar funds or payments attributable to any property covered by the Deed of Trust or the other Loan Documents received by Borrower or directed by Borrower to a third party other than Lender which, under the terms thereof, should have been paid to the Lender;
(vi) Failure to maintain, repair or restore any property covered by the Deed of Trust or the other Loan Documents in good condition; and
(vii) The failure to maintain casualty and obligations other insurance, if commercially available, required to be maintained by Borrower under its Limited Guaranty the Loan Documents or the removal of any property covered by the Deed of Trust or the other Loan Documents which is not consented to in connection with a termination writing by Lender, replaced by similar property of this Agreement pursuant to Section 7.1(d), similar quality or permitted by the Investor acknowledges and agrees that it shall not solicit from the Company, or permit the Company to give, any release, amendment or waiver terms of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same mannerLoan Documents.
(c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Fee.
Appears in 1 contract
Sources: Guaranty Agreement (Apartment Investment & Management Co)
Guaranteed Obligations. (a) The Investor Guarantor does hereby agrees that (i) concurrently with unconditionally and absolutely guarantee to State Farm the execution full and delivery of this Agreement, it shall execute and deliver prompt payment to the Company a Limited Guaranty in favor State Farm of the Company pursuant to which the Investor shall agree to guarantee the payment following obligations of the Investor’s Guaranteed Percentage Borrower (as defined in its applicable Limited Guaranty) of the "Guaranteed Obligations, on the terms and subject to the conditions set forth in its applicable Limited Guaranty, and (ii) subject to Section 6.10(e"), it shall comply with its obligations under its applicable Limited Guaranty.to wit:
(b) A. The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any payment to State Farm of them is) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b) and Section 6.10(e), in the event that the Company does not enforce all the Limited Guaranties contemporaneously, the Investor shall contribute amounts due from time to time under the Note, the Mortgage and other Loan Documents and any and all renewals, replacements and extensions of and all modifications or amendments to the Loan Documents, including, without limitation, all Principal, accrued Interest, Prepayment Fees and other sums, including attorneys' and paralegals' fees, (collectively, "Indebtedness"). The Guaranteed Obligations guaranteed hereby are subject to reduction and termination as hereinafter provided in subparagraph B and C of this Paragraph 3; subject, however, to those conditions precedent to such reduction and termination hereinafter set forth in Paragraph 10 of this Guaranty.
B. From and after the time that the gross income derived from the Premises (which gross income includes, without limitation, income from rental of apartment units, garage rental income, charges for water submetering, charges for waste removal, charges for alarm system and all miscellaneous income) has reached at least Two Hundred Sixty-Seven Thousand Three Hundred Ninety-Seven and 50/100 Dollars (267,397.50) per calendar month for a period of three (3) consecutive calendar months, the Guaranteed Obligations shall automatically be reduced to the amount paid or payable by other Guarantors in respect of the Limited Guaranties Indebtedness due from time to time which is in excess of Fifteen Million Seven Hundred Fifty Thousand and 00/100 Dollars (other than any such amount paid or payable by $15,750,000.00).
C. From and after the time that the gross income derived from the Premises (as specified in subparagraph B immediately above) has reached at least Two Hundred Ninety-One Thousand Six Hundred Sixty-Six and 67/100 Dollars ($291,666.67) per calendar month for a Guarantor solely arising from such Guarantor’s breach period of its obligations under such Guarantor’s Limited Guarantythree (3) so that after such contributionsconsecutive calendar months, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such automatically be released from the Guaranteed Obligations. Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (hereby agrees that the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event Guaranteed Obligations shall the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except to State Farm upon demand of State Farm in connection lawful money of the United States of America in accordance with a release by the Company of any Guarantor from its liabilities terms and obligations under its Limited Guaranty in connection with a termination provisions of this Agreement pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall not solicit from the Company, or permit the Company to give, any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same mannerGuaranty.
(c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Fee.
Appears in 1 contract
Guaranteed Obligations. Guarantor does hereby unconditionally and absolutely guarantee to State Farm the full and prompt payment to State Farm of the following obligations (a) The Investor hereby agrees that "Guaranteed Obligations"), to wit:
A. After the occurrence of any Event of Default under any of the Loan Documents:
(i) concurrently with An amount equal to any Rents received by any of the execution Exculpated Parties from tenants of the Premises and delivery of this Agreement, it shall execute and deliver not applied to the Company a Limited Guaranty in favor Indebtedness or the ordinary operating expenses of the Company pursuant to which the Investor shall agree to guarantee the payment of the Investor’s Guaranteed Percentage (as defined in its applicable Limited Guaranty) of the Guaranteed Obligations, on the terms and subject to the conditions set forth in its applicable Limited Guaranty, and Premises during Borrower's current fiscal year;
(ii) subject An amount equal to Section 6.10(e)any Rents from the Premises not paid by tenants due to Borrower's failure to perform the landlord's obligations under any lease or leases of the Premises or any part thereof;
(iii) Any amount(s) necessary to repair or replace any damage to or destruction of the Premises which is caused by the willful or wanton act or willful or wanton omission of any of the Exculpated Parties;
(iv) Any sums expended by State Farm in performance of or in compliance with the obligations of the landlord under all covenants, it shall agreements and provisions of any Lease assigned to State Farm as security for the Indebtedness and Obligations, due to Borrower's failure or refusal to perform such obligations;
B. An amount equal to any casualty or liability insurance proceeds or condemnation awards received by any of the Exculpated Parties and not delivered over to State Farm or used for Restoration of the Premises;
C. An amount equal to any costs, expenses, damages, attorneys' and paralegals' fees or other liabilities or obligations incurred by State Farm, directly or indirectly arising out or on account of or attributable to the use, generation, storage, release, threatened release, discharge, disposal, or presence on, under, or about the Premises of any materials, substances, or wastes defined or classified as hazardous or toxic under applicable federal, state or local laws or regulations or arising out of or from any failure on the part of Borrower or Guarantor to comply with its the provisions of the Environmental Indemnification Agreement; (provided, however, that the Guarantor's obligations under its applicable Limited Guarantyhereunder shall not apply to any costs incurred by or imposed upon State Farm with respect to any event arising subsequent to State Farm taking title to the Premises by foreclosure or deed in lieu of foreclosure unless such costs are incurred in connection with an event related to a condition existing at the Premises prior to or at the time of such foreclosure or deed in lieu of foreclosure); and
D. An amount equal to any loss, damage, cost, expense, liability or obligation suffered or incurred by State Farm arising out or on account of or based upon any fraud or willful misrepresentation of a material fact by any of the Exculpated Parties in any document executed or presented to State Farm in connection with the Loan.
(b) The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any of them is) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b) and Section 6.10(e), in the event that the Company does not enforce all the Limited Guaranties contemporaneously, the Investor shall contribute from time to time to the E. An amount paid or payable by other Guarantors in respect of the Limited Guaranties (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) and the denominator of which is the sum of any and all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or tenant security deposits required to be paid by each Guarantor exceed such Guarantor’s Maximum Amount State Farm to any tenants of the Premises (or any other party) and not reimbursed to State Farm by Borrower or any Exculpated Party and any and all damages, costs and expenses, including, without limitation, attorneys' and paralegals' fees, suffered or incurred by State Farm by reason or on account of the failure of Borrower or any Exculpated Party to account for and turn over to State Farm any tenant security deposits received by Borrower or any Exculpated Party as defined under such Guarantor’s Limited Guaranty. Except in connection with a release required by the Company Leases or the Loan Documents. Guarantor hereby agrees that the Guaranteed Obligations shall be paid by Guarantor to State Farm upon demand of any Guarantor from its liabilities State Farm in lawful money of the United States of America in accordance with the terms and obligations under its Limited Guaranty in connection with a termination provisions of this Agreement pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall not solicit from the Company, or permit the Company to give, any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same mannerGuaranty.
(c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Fee.
Appears in 1 contract
Guaranteed Obligations. (a) The Investor Guarantor hereby absolutely, unconditionally and irrevocably guarantees to the Administrative Agent (on behalf of the Lenders) the payment when due of a portion of the principal balance of the Loan in an amount equal to Twenty-Four Million Dollars ($24,000,000), which amount shall be paid, if not sooner paid, on the earlier of the Maturity Date (as the same may be extended in accordance with the Loan Agreement), or the date on which the Loans are accelerated or become automatically due and payable in accordance with the Loan Documents) (the foregoing amount is referred to herein as the “Guaranteed Principal Amount”). Guarantor acknowledges and agrees that Guarantor’s obligations on account of the Guaranteed Principal Amount shall not be reduced by any payment applied to the principal balance of the Loans or any such advances from any source (including, without limitation, any proceeds from the foreclosure sale of all or any portion of the collateral for the Loans), except to the extent that such payment is indefeasible (as hereinafter described) and either (i) is made by Guarantor and Guarantor has elected, pursuant to written instructions given to the Administrative Agent concurrently with such payment and prior to the execution occurrence and continuance of an “Event of Default” by Guarantor hereunder or under the other Guarantor Documents (as such term is defined herein and in the other Guarantor Documents), to apply such payment to its obligations hereunder on account of the Guaranteed Principal Amount or (ii) is from another source and results in the reduction of the outstanding balance of the Loans and such advances to a sum that is less than the maximum dollar liability of Guarantor on account of the Guaranteed Principal Amount as expressly set forth above.
(b) Guarantor further hereby absolutely, unconditionally and irrevocably guarantees to the Administrative Agent (on behalf of the Lenders) the payment when due of all accrued and unpaid interest on the Loans, including, without limitation, default interest, breakage costs and late fees due under the Loan Agreement (collectively, the “Guaranteed Carry Amount”) from the date on which the Base Building Substantial Completion Conditions are satisfied through the earlier of:
(1) The date the Loans are paid in full;
(2) The date on which a foreclosure sale of all of the property encumbered as collateral for the Loan (including, without limitation, the Project) has been consummated pursuant to Article 11 of the Loan Agreement; or
(3) The date on which Borrower has unconditionally delivered to Administrative Agent (or its designee) for the benefit of the Lenders a deed or conveyance in lieu of foreclosure with respect to all of the property encumbered as collateral for the Loans (including, without limitation, the Project), which delivery shall include conveyance of good, marketable and insurable title to the Project free from Liens except for Permitted Encumbrances, and free from violations of Applicable Law (including, without limitation, Environmental Laws) and shall include the following requirements and satisfaction of the following conditions (in each case as determined by Administrative Agent): (A) approval by Administrative Agent of a current Site Assessment for the Project and any and all supplemental reports thereto required by Administrative Agent; (B) the absence of any matters which could give rise to any claim pursuant to the Environmental Indemnity Agreement; (C) the physical condition of the Project shall be substantially the same as it was on the date on which the Base Building Substantial Completion Conditions were satisfied, reasonable wear and tear and loss by insured casualty in an amount not to exceed the Threshold Amount excepted; (D) there shall be no litigation or administrative agency or other governmental proceeding of any kind whatsoever, pending or threatened in writing, which would, as reasonably determined by Administrative Agent, materially adversely affect the value of the Project or the ability of Administrative Agent or its designee to use the Project in the manner it is intended to be used; (E) no proceedings shall be pending or threatened which could or would cause any change, redesignation or other modification of the zoning classification of, or of any building or environmental code requirements applicable to, the Project, or any portion thereof, or any property adjoining the Project; (F) Borrower shall have delivered to Administrative Agent or its designee originals of all leases, all service contracts, all building permits, certificates of occupancy and all other governmental permits, subdivision maps, licenses and approvals for the Project; all as-built plans and specifications for the Improvements, certified by the architect and engineer of record, all surveys, structural, mechanical, engineering, electrical, soil, environmental, and similar reports, studies and audits, and all service manuals and operating procedure manuals relating to the Project in Borrower’s possession or under its control; and copies of all income and expense statements, vendor lists, outstanding purchase orders, current and prior tax bills and current utility bills; (G) Borrower shall have delivered to Administrative Agent or its designee any other documents, instruments, agreements, books, records, correspondence and other items relating to Borrower or the Project or necessary to consummate the transactions contemplated hereby as Administrative Agent may reasonably request, including such materials or documents which, in the reasonable judgment of Administrative Agent, are necessary or desirable to deliver effectively title to and possession of the Project in the condition required herein, including, without limitation, title searches, insurance policies, current environmental reports, bills of sale, assignments of leases and other agreements, non-foreign person affidavits; and (H) Borrower and Borrower Parties (and any other Affiliates of Borrower required by Administrative Agent) shall have delivered to Administrative Agent for the benefit of Administrative Agent, the Lenders, and their respective officers, directors, employees, agents, successors and assigns an unconditional release of and from any and all claims, demands, obligations, liabilities, indebtednesses, breaches of contract, breaches of duty or any relationship, acts, omissions, misfeasance, malfeasance, cause or causes of action, debts, sums of money, accounts, compensations, contracts, controversies, promises, damages, costs, losses and expenses, of every type, kind, nature, description or character, and irrespective of how, why, or by reason of what facts, whether heretofore, now existing or hereafter arising, or which could, might, or may be claimed to exist, of whatever kind or name, whether known or unknown, suspected or unsuspected, liquidated or unliquidated, which in any way arise out of, are connected with or relate to any acts or occurrences on or prior to the date thereof in connection with the Loans and/or the ownership, maintenance and operation of the Project and the Improvements unless caused by the gross negligence or willful misconduct of the Administrative Agent (it being understood that Borrower’s delivery of this Agreementthe foregoing items shall not obligate the Administrative Agent to accept such deed or conveyance in lieu of foreclosure, it and that the exclusive consequence of such delivery shall execute and deliver be the termination of Guarantor’s obligation to pay the Guaranteed Carry Amount). The obligations of Guarantor with respect to the Company a Limited Guaranty in favor of Guaranteed Principal Amount and the Company Guaranteed Carry Amount pursuant to which clauses (a) and (b) of this Section 1.01 are, collectively, the Investor “Guaranteed Obligations”. Guarantor hereby further agrees that if Borrower shall agree fail to guarantee the payment of the Investor’s Guaranteed Percentage pay in full when due (as defined in its applicable Limited Guarantywhether at stated maturity, by acceleration or otherwise) any of the Guaranteed Obligations, Guarantor will immediately pay the same, without any demand or notice whatsoever. All payments by Guarantor on the terms and subject to the conditions set forth in its applicable Limited Guaranty, and (ii) subject to Section 6.10(e), it shall comply with its obligations under its applicable Limited Guaranty.
(b) The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any of them is) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b) and Section 6.10(e), in the event that the Company does not enforce all the Limited Guaranties contemporaneously, the Investor shall contribute from time to time to the amount paid or payable by other Guarantors in respect of the Limited Guaranties (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by the Company of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination account of this Agreement pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall not solicit from the Company, or permit the Company to give, any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same manner.
(c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased paid in connection with Dollars. Each and every default under the Loan Documents shall give rise to a separate cause of action hereunder by the Lenders and separate suits may be brought hereunder as each such increase in the amount cause of Parent Termination Feeaction arises.
Appears in 1 contract
Guaranteed Obligations. Subject to the limitations in Section 1.8 hereof, Guarantor hereby unconditionally and irrevocably guaranties to Lender the due, punctual and full payment and performance of, and covenants with Lender to duly, punctually and fully pay and perform, and to be fully liable to Lender for, the following as and when such payment shall become due (whether by acceleration or otherwise) in accordance with the terms of the Loan Documents (including without limitation attorney's fees and disbursements and collection costs incurred in connection therewith) (collectively, the “Guaranteed Obligations”):
(a) The Investor hereby agrees that (i) concurrently with all indebtedness of Borrower to Lender evidenced by the execution Note, both principal and delivery of this Agreement, it shall execute and deliver to the Company a Limited Guaranty in favor of the Company pursuant to which the Investor shall agree to guarantee the payment of the Investor’s Guaranteed Percentage (as defined in its applicable Limited Guaranty) of the Guaranteed Obligations, on the terms and subject to the conditions set forth in its applicable Limited Guarantyinterest, and (ii) subject any refinancing or refunding of any thereof, and all other amounts due or to Section 6.10(e)become due under the Note, it shall comply with its obligations under its applicable Limited Guaranty.Mortgage and the other Loan Documents, and any refinancing or refunding of any thereof, whether now existing or hereafter arising, contracted or incurred; and
(b) The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any all covenants, agreements, obligations and liabilities of them is) liable to make payments Borrower under the Note and the other Loan Documents and the Environmental Indemnification Agreement dated of even date herewith from Borrower and Glimcher Properties Limited Guaranties. Subject to Section 6.10(b) and Section 6.10(ePartnership in favor of Lender (the “Environmental Indemnity”), in whether now existing or hereafter arising, contracted or incurred. This Guaranty and the event that Guaranteed Obligations are to be secured by, inter alia, a Mortgage, Security Agreement, Financing Statement and Fixture Filing (Second Priority) executed and delivered by Guarantor (as the Company does not enforce all the Limited Guaranties contemporaneouslysame may be amended, the Investor shall contribute modified or supplemented from time to time, the “Guarantor Second Mortgage”), and an Assignment of Rents and Leases (Second Priority) executed and delivered by Guarantor (as the same may be amended, modified or supplemented from time to time, the amount paid or payable by other Guarantors “Guarantor Second Assignment of Rents”), each of even date herewith and each such instrument intended to be recorded in respect the real estate records of the Limited Guaranties (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate county and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (state where the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by the Company of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination of this Agreement pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall not solicit from the Company, or permit the Company to give, any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same manner.
(c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum AmountPremises” and “Guaranteed Percentage” as set out described in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Fee.instrument is located;
Appears in 1 contract
Guaranteed Obligations. (a) The Investor hereby agrees that (i) acknowledges that concurrently with the execution and delivery of this Agreement, it shall each of BCPE Bridge Cayman, L.P. and BCPE Stack Holdings, L.P. (collectively, the “Bain Guarantors”) will execute and deliver to the Company a Limited Guaranty (both such Limited Guaranties collectively, the “Bain Limited Guaranties”) in favor of the Company pursuant to which the Investor shall agree to guarantee guaranteeing the payment of the Investoreach Bain Guarantor’s Guaranteed Percentage (each as defined in its the applicable Bain Limited Guaranty, being 40.5% and 42.0% , respectively, as of the date hereof) of the Guaranteed Obligations, on the terms and subject to the conditions set forth in its the applicable Bain Limited Guaranty, and (ii) acknowledges and agrees that the Investor shall be responsible for his Guarantee Sharing Percentage of any portion of the Guaranteed Obligations borne by the Bain Guarantors under the Bain Limited Guaranties on and subject to Section 6.10(e), it shall comply with its obligations under its applicable Limited Guaranty.the terms set forth herein;
(b) The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any of them is) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b6.11(e) and Section 6.10(e)clause (B) of the penultimate sentence of this paragraph, in to the event that extent the Bain Guarantors have made any payment to Parent or the Company does not enforce all pursuant to the terms and conditions of the Bain Limited Guaranties contemporaneouslyGuaranties, upon written notice from the Bain Guarantors jointly (the “Funding Notice”) and reasonable proof of such payment, the Investor shall contribute from time promptly (and in any event, within ten (10) Business Days) pay or cause to time to the amount paid or payable by other Guarantors in respect of the Limited Guaranties (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always be paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of (i) the aggregate amount paid under all by the Bain Guarantors to Parent or the Company pursuant to the Bain Limited Guaranties (which shall not exceed the product of the Limited Guaranties, Maximum Guaranteed Percentage multiplied by the Guaranteed Obligations in any event and shall exclude any amount actually recovered from Other Investors pursuant to any Other Support Agreements pursuant to clauses substantially the same as Section 6.11(b)) multiplied by (ii) the Investor’s Guarantee Sharing Percentage by wire transfer of U.S. dollars in immediately available funds to one or more bank accounts designated by the Bain Guarantors in the Funding Notice (with such amount to be allocated between the Bain Guarantors pro rata based on their respective Guaranteed Percentage or otherwise as agreed between the Bain Guarantors). In the event that the Investor has made a fractionpayment to the Bain Guarantors in accordance with the foregoing sentence and, subsequently, the Bain Guarantors recover any amount from Other Investors pursuant to any Other Support Agreements pursuant to clauses substantially the same as Section 6.11(b), the Bain Guarantors shall remit a portion of such payment to the Investor so as to put the Bain Guarantors and the Investor in the same position as if the Bain Guarantors had recovered such amount from Other Investors prior to the Investor having made the payment in accordance with the foregoing sentence. For purposes hereof, the “Maximum Guaranteed Percentage” means a quotient expressed as a percentage, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable aggregate amount of the Equity Contribution contemplated to be made by the Investor and his Affiliates, Boloria Investments Holding B.V. and its Affiliates, Zeta Cayman Limited Guaranty) and its Affiliates and the Bain Guarantors and the denominator of which is the sum aggregate amount of the Equity Contribution to be made by all of the Maximum Amounts Investor Group Members and their respective Affiliates, being 82.5% as of the date hereof; and the “Guarantee Sharing Percentage” means a quotient expressed as a percentage, the numerator of which is the amount of the Equity Contribution to be made by the Investor and his Affiliates, and the denominator of which is the aggregate amount of the Equity Contribution contemplated to be made by the Investor and his Affiliates, Boloria Investments Holding B.V. and its Affiliates, Zeta Cayman Limited and its Affiliates and the Bain Guarantors, being 4.5% as of the date hereof. This Section 6.10 shall not apply and the Investor shall have no obligation to make any payment pursuant to this Section 6.10 if (x) any of the Bain Guarantors or their respective Affiliates breaches its Support Agreement, Equity Commitment Letter, or Limited Guaranty (as defined in each applicable Limited Guarantyapplicable), (y) the Merger Agreement is terminated without the Transactions having been consummated and (z) such failure of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or Transactions to be paid consummated is caused by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guarantybreach. Except in connection with a release by For the Company avoidance of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination of this Agreement pursuant to Section 7.1(d)doubt, the Investor acknowledges and agrees that it shall not solicit be entitled to seek reimbursement with respect to its payment obligations under this Section 6.10 from the Company, or permit the Company Other Investors pursuant to give, any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in Other Support Agreements pursuant to clauses substantially the same proportion or amends or waives as Section 6.11(b) except to the provisions of extent it has first paid the other Limited Guaranties in relevant amount to the same manner.
(c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, Bain Guarantors pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Feethis Section 6.10(b).
Appears in 1 contract
Sources: Support Agreement (Liu Chengyan)
Guaranteed Obligations. (a) The Investor hereby agrees that (i) acknowledges that concurrently with the execution and delivery of this Agreement, it shall each of BCPE Bridge Cayman, L.P. and BCPE Stack Holdings, L.P. (collectively, the “Bain Guarantors”) will execute and deliver to the Company a Limited Guaranty (both such Limited Guaranties collectively, the “Bain Limited Guaranties”) in favor of the Company pursuant to which the Investor shall agree to guarantee guaranteeing the payment of the Investoreach Bain Guarantor’s Guaranteed Percentage (each as defined in its the applicable Bain Limited Guaranty, being 40.5% and 42.0%, respectively, as of the date hereof) of the Guaranteed Obligations, on the terms and subject to the conditions set forth in its the applicable Bain Limited Guaranty, and (ii) acknowledges and agrees that the Investor shall be responsible for its Guarantee Sharing Percentage of any portion of the Guaranteed Obligations borne by the Bain Guarantors under the Bain Limited Guaranties on and subject to Section 6.10(e), it shall comply with its obligations under its applicable Limited Guaranty.the terms set forth herein;
(b) The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any of them is) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b6.10(e) and Section 6.10(e)clause (B) of the penultimate sentence of this paragraph, in to the event that extent the Bain Guarantors have made any payment to Parent or the Company does not enforce all pursuant to the terms and conditions of the Bain Limited Guaranties contemporaneouslyGuaranties, upon written notice from the Bain Guarantors jointly (the “Funding Notice”) and reasonable proof of such payment, the Investor shall contribute from time promptly (and in any event, within ten (10) Business Days) pay or cause to time to the amount paid or payable by other Guarantors in respect of the Limited Guaranties (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always be paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of (i) the aggregate amount paid under all by the Bain Guarantors to Parent or the Company pursuant to the Bain Limited Guaranties (which shall not exceed the product of the Limited Guaranties, Maximum Guaranteed Percentage multiplied by the Guaranteed Obligations in any event and shall exclude any amount actually recovered from Other Investors pursuant to any Other Support Agreements pursuant to clauses substantially the same as Section 6.10(b)) multiplied by (ii) the Investor’s Guarantee Sharing Percentage by wire transfer of U.S. dollars in immediately available funds to one or more bank accounts designated by the Bain Guarantors in the Funding Notice (with such amount to be allocated between the Bain Guarantors pro rata based on their respective Guaranteed Percentage or otherwise as agreed between the Bain Guarantors). In the event that the Investor has made a fractionpayment to the Bain Guarantors in accordance with the foregoing sentence and, subsequently, the Bain Guarantors recover any amount from Other Investors pursuant to any Other Support Agreements pursuant to clauses substantially the same as Section 6.10(b), the Bain Guarantors shall remit a portion of such payment to the Investor so as to put the Bain Guarantors and the Investor in the same position as if the Bain Guarantors had recovered such amount from Other Investors prior to the Investor having made the payment in accordance with the foregoing sentence. For purposes hereof, the “Maximum Guaranteed Percentage” means a quotient expressed as a percentage, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable aggregate amount of the Equity Contribution contemplated to be made by the Investor and its Affiliates, Zeta Cayman Limited Guaranty) and its Affiliates, ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇ and his Affiliates and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by the Company of any Guarantor from its liabilities Bain Guarantors and obligations under its Limited Guaranty in connection with a termination of this Agreement pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall not solicit from the Company, or permit the Company to give, any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same manner.
(c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Fee.the
Appears in 1 contract
Guaranteed Obligations. In order to induce Lender to loan to Borrower, the sum of Twenty-Nine Million Dollars ($29,000,000) (the "LOAN"), to be evidenced by that certain Secured Promissory Note of even date herewith, executed by Borrower and payable to the order of Lender (the "NOTE"), Guarantor hereby unconditionally and irrevocably guarantees to Lender and to its successors, endorsees and/or assigns the full and prompt payment when due, of all losses, costs, expenses, damages, claims and/or liabilities arising from any of the following:
(a) The Investor hereby agrees Any negligent or grossly negligent tortious conduct or material misrepresentation by Borrower or any of the Principals in connection with the Loan, any of the Loan Documents or any of the collateral covered by the Deed of Trust and the other Loan Documents (the "COLLATERAL") (provided that for purposes of this Section 1(a), a representation shall not be a material misrepresentation as long as (i) concurrently with the execution and delivery of this Agreement, it shall execute and deliver to the Company a Limited Guaranty in favor is true as of the Company pursuant to which the Investor shall agree to guarantee the payment of the Investor’s Guaranteed Percentage (as defined in its applicable Limited Guaranty) of the Guaranteed Obligations, on the terms and subject to the conditions set forth in its applicable Limited GuarantyClosing Date, and (ii) subject it ceases to Section 6.10(ebe true after the Closing Date as a result of a circumstance or condition beyond the reasonable control of Borrower or any of its Principals), it shall comply with its obligations under its applicable Limited Guaranty.;
(b) The Investor shall reasonably cooperate in defending Any waste to any claim that part of the Guarantors are Collateral, except to the extent such waste is due solely to the unavailability of Property Income (or any as hereafter defined) from the Project after the application of them is) liable such Property Income to make payments the performance of Borrower's obligations under the Limited Guaranties. Subject Loan Documents;
(c) Any failure to Section 6.10(b) and Section 6.10(e), in the event that the Company does not enforce all the Limited Guaranties contemporaneously, the Investor shall contribute from time deliver to time to the amount paid or payable by other Guarantors in respect of the Limited Guaranties (other than Lender any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount Casualty Proceeds (as defined in the applicable Limited GuarantyDeed of Trust) and covering any portion of the denominator of which is the sum of all the Maximum Amounts Collateral or any Condemnation Proceeds (as defined in each applicable Limited Guarantythe Deed of Trust) of all Guarantors; provided that, subject as to the following sentence, in no event shall the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by the Company of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination of this Agreement pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall not solicit from the Company, or permit the Company to give, any release, amendment or waiver portion of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties Collateral in the same proportion or amends or waives accordance with the provisions of the other Limited Guaranties Loan Documents or any failure by Borrower to apply any such proceeds released by Lender to Borrower in accordance with the same manner.
(c) Subject to Section 6.11 and Section 7.1(d), in terms of the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Fee.Loan Documents;
Appears in 1 contract
Sources: Limited Recourse Obligations Guaranty (Xm Satellite Radio Inc)
Guaranteed Obligations. (a) The Investor hereby agrees that Notwithstanding anything else to the contrary contained in this Guaranty, the maximum amount for which the Guarantor shall be liable under this Guaranty shall not exceed (i) concurrently with the execution and delivery of this AgreementBase Guaranteed Amount (defined below as the same shall be determined from time to time), it shall execute and deliver to the Company a Limited Guaranty in favor of the Company pursuant to which the Investor shall agree to guarantee the payment of the Investor’s Guaranteed Percentage (as defined in its applicable Limited Guaranty) of the Guaranteed Obligations, on the terms and subject to the conditions set forth in its applicable Limited Guaranty, and plus (ii) subject all Swap Contract Obligations relating to Section 6.10(e)the Loan, it shall comply with its obligations under its applicable Limited Guaranty.
and any and all other present and future Swap Transactions and Swap Contracts, plus (biii) The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any 100% of them is) liable to make payments all amounts owing under the Limited Guaranties. Subject to Section 6.10(bEnvironmental Indemnity by any Borrower if (and only if) and Section 6.10(e), in the event that the Company does not enforce all the Limited Guaranties contemporaneously, the Investor shall contribute from time to time to the amount paid or payable by other Guarantors in respect of the Limited Guaranties (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount Environmental Insurance Policy (as defined in the applicable Limited GuarantyLoan Agreement and substantially and materially in the form approved by Agent (A) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guarantypursuant to Section 2.1(r) of all Guarantors; provided that, subject the Loan Agreement as to the following sentenceInitial Properties and (B) at the time a Property is added as collateral for the Loan as to all other Properties) is not then in place or, if not then in place, does not otherwise cover Borrower for claims relating to environmental matters when and if demand is made by Agent under the Environmental Indemnity (i.e., Guarantor shall have no event shall liability under this Guaranty for amounts owing under the Contribution Amount paid Environmental Indemnity so long as the Environmental Insurance Policy is in place or otherwise covers the liability of Borrower for environmental matters at the time demand is made by Agent to be paid by each Guarantor exceed Borrower under the Environmental Indemnity, whether or not the claim relating to any such Guarantor’s Maximum Amount as defined environmental matter is a covered claim under such Guarantor’s Limited Guaranty. Except Environmental Insurance Policy), plus (iv) 100% of any deficiency, loss or damage suffered by Agent and Lenders because of: (1) the intentional misapplication or misappropriation by Borrower of any funds derived from any Property, including the misapplication or misappropriation by Borrower of rent, security deposits, insurance proceeds, condemnation awards, or other income arising with respect to any Property; (2) Borrower's intentional commission of physical waste with respect to any Property; (3) the fraud or intentional misrepresentation by Borrower or Guarantor made in or in connection with a release the Loan Documents or the Loan; or (4) Borrower's voluntary or collusive filing, or the filing against Borrower by the Company any party, of any proceeding for relief under any federal or state bankruptcy, insolvency or receivership laws or any assignment for the benefit of creditors made by Borrower not dismissed within 90 days. Notwithstanding the foregoing or anything stated to the contrary in this Guaranty, under no circumstances whatsoever shall the liability of Guarantor from its liabilities and obligations arising under its Limited Guaranty in connection with a termination of this Agreement pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall not solicit from the Company, or permit the Company to give, any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties clause (i) above exceed $62,500,000.00 in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same manneraggregate.
(c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Fee.
Appears in 1 contract
Sources: Repayment Guaranty (KBS Real Estate Investment Trust, Inc.)
Guaranteed Obligations. (a) The Investor Lease Guarantor hereby agrees that unconditionally and irrevocably guarantees to Landlord, as primary obligor and not merely as surety, the prompt and complete payment and performance in full in cash of, without duplication,
(i) concurrently with all monetary obligations of Tenant under the execution Master Lease and delivery the Golf Course Use Agreement of this Agreementany nature, it shall execute (including, without limitation, during any Transition Period) including, without limitation, (x) Tenant’s rent and deliver other payment obligations of any nature under the Master Lease, (y) Tenant’s obligation to expend the Company a Limited Guaranty in favor of the Company pursuant to which the Investor shall agree to guarantee the payment of the Investor’s Guaranteed Percentage Required Capital Expenditures (as defined in its applicable Limited Guarantythe Master Lease) in accordance with the Master Lease and any other expenditures required of Tenant by the terms of the Master Lease and (z) Tenant’s obligation to pay monetary damages in connection with any breach of the Master Lease or the Golf Course Use Agreement and to pay indemnification obligations in each case as provided under the Master Lease and under the Golf Course Use Agreement, (ii) all Guaranty Termination Obligations (without duplication of amounts otherwise already included under clause (i)) and (iii) any sums payable to Landlord pursuant to Section 17.2.4 hereof (clauses (i), (ii) and (iii) collectively, the “Guaranteed Obligations”), in each case including (a) amounts that would become due but for the operation of the automatic stay under Section 362(a) of the Bankruptcy Code or similar laws and (b) any late charges and interest provided for under the Master Lease (including interest accruing during the pendency of any bankruptcy, insolvency, receivership or other similar proceeding, whether or not a claim for such interest is allowed or allowable in such proceeding). Lease Guarantor shall be jointly and severally liable with Tenant for the payment and performance of the Guaranteed Obligations. For the avoidance of doubt, although as a matter of process and procedure, Section 17.2 hereof sets forth a process by which Landlord may issue notice to Lease Guarantor in respect of certain Guaranteed Obligations, such process is not intended to be a predicate to the existence or accrual of Lease Guarantor’s liability for any of the Guaranteed Obligations, on the terms and subject to the conditions set forth in its applicable Limited Guaranty, and (ii) subject to Section 6.10(e), it shall comply with its being understood that all of Lease Guarantor’s obligations under its applicable Limited Guaranty.
(b) The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any of them is) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b) and Section 6.10(e), in the event that the Company does not enforce all the Limited Guaranties contemporaneously, the Investor shall contribute from time to time to the amount paid or payable by other Guarantors hereunder in respect of the Limited Guaranties Guaranteed Obligations are unconditional and irrevocable in all respects, irrespective of whether the process set forth in Section 17.2 has been commenced, completed or otherwise satisfied (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributionsbut, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided thatcase, subject to the following sentenceterms and conditions of this Agreement, in no event shall including the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by the Company occurrence of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination of this Agreement pursuant to Section 7.1(dRelease Date), the Investor acknowledges and agrees that it shall not solicit from the Company, or permit the Company to give, any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same manner.
(c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Fee.
Appears in 1 contract
Guaranteed Obligations. (a) The Investor hereby agrees that (i) acknowledges that concurrently with the execution and delivery of this Agreement, it shall each of BCPE Bridge Cayman, L.P. and BCPE Stack Holdings, L.P. (collectively, the “Bain Guarantors”) will execute and deliver to the Company a Limited Guaranty (both such Limited Guaranties collectively, the “Bain Limited Guaranties”) in favor of the Company pursuant to which the Investor shall agree to guarantee guaranteeing the payment of the Investoreach Bain Guarantor’s Guaranteed Percentage (each as defined in its the applicable Bain Limited Guaranty, being 40.5% and 42.0%, respectively, as of the date hereof) of the Guaranteed Obligations, on the terms and subject to the conditions set forth in its the applicable Bain Limited Guaranty, and (ii) acknowledges and agrees that the Investor shall be responsible for its Guarantee Sharing Percentage of any portion of the Guaranteed Obligations borne by the Bain Guarantors under the Bain Limited Guaranties on and subject to Section 6.10(e), it shall comply with its obligations under its applicable Limited Guaranty.the terms set forth herein;
(b) The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any of them is) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b6.10(e) and Section 6.10(e)clause (B) of the penultimate sentence of this paragraph, in to the event that extent the Bain Guarantors have made any payment to Parent or the Company does not enforce all pursuant to the terms and conditions of the Bain Limited Guaranties contemporaneouslyGuaranties, upon written notice from the Bain Guarantors jointly (the “Funding Notice”) and reasonable proof of such payment, the Investor shall contribute from time promptly (and in any event, within ten (10) Business Days) pay or cause to time to the amount paid or payable by other Guarantors in respect of the Limited Guaranties (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always be paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of (i) the aggregate amount paid under all by the Bain Guarantors to Parent or the Company pursuant to the Bain Limited Guaranties (which shall not exceed the product of the Limited Guaranties, Maximum Guaranteed Percentage multiplied by the Guaranteed Obligations in any event and shall exclude any amount actually recovered from Other Investors pursuant to any Other Support Agreements pursuant to clauses substantially the same as Section 6.10(b)) multiplied by (ii) the Investor’s Guarantee Sharing Percentage, by wire transfer of U.S. dollars in immediately available funds to one or more bank accounts designated by the Bain Guarantors in the Funding Notice (with such amount to be allocated between the Bain Guarantors pro rata based on their respective Guaranteed Percentage or otherwise as agreed between the Bain Guarantors). In the event that the Investor has made a fractionpayment to the Bain Guarantors in accordance with the foregoing sentence and, subsequently, the Bain Guarantors recover any amount from Other Investors pursuant to any Other Support Agreements pursuant to clauses substantially the same as Section 6.10(b), the Bain Guarantors shall remit a portion of such payment to the Investor so as to put the Bain Guarantors and the Investor in the same position as if the Bain Guarantors had recovered such amount from Other Investors prior to the Investor having made the payment in accordance with the foregoing sentence. For purposes hereof, the “Maximum Guaranteed Percentage” means a quotient expressed as a percentage, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) aggregate amount of the Equity Contribution contemplated to be made by the Investor and its Affiliates, Boloria Investments Holding B.V. and its Affiliates, ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇ and his Affiliates and the Bain Guarantors and the denominator of which is the sum aggregate amount of the Equity Contribution contemplated to be made by all of the Maximum Amounts Investor Group Members and their respective Affiliates, being 82.5% as of the date hereof; and the “Guarantee Sharing Percentage” means a quotient expressed as a percentage, the numerator of which is the amount of the Equity Contribution contemplated to be made by the Investor and its Affiliates, and the denominator of which is the aggregate amount of the Equity Contribution contemplated to be made by the Investor and its Affiliates, Boloria Investments Holding B.V. and its Affiliates, ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇ and his Affiliates and the Bain Guarantors, being 12.3% as of the date hereof. This Section 6.9 shall not apply and the Investor shall have no obligation to make any payment pursuant to this Section 6.9 if (A) (x) any of the Bain Guarantors or their respective Affiliates breaches its Support Agreement, Equity Commitment Letter, or Limited Guaranty (as defined in each applicable Limited Guarantyapplicable), (y) the Merger Agreement is terminated without the Transactions having been consummated and (z) such failure of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or Transactions to be paid consummated is caused by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by the Company of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination of breach or (B) this Agreement is terminated pursuant to Section 7.1(d). For the avoidance of doubt, the Investor acknowledges and agrees that it shall not solicit be entitled to seek reimbursement with respect to its payment obligations under this Section 6.9 from the Company, or permit the Company Other Investors pursuant to give, any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in Other Support Agreements pursuant to clauses substantially the same proportion or amends or waives as Section 6.10(b) except to the provisions of extent it has first paid the other Limited Guaranties in relevant amount to the same manner.
(c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, Bain Guarantors pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Feethis Section 6.9.
Appears in 1 contract
Sources: Support Agreement (Sk Inc.)
Guaranteed Obligations. The Company and the Subsidiary Guarantors hereby designate the Series 2006 Bonds as Guaranteed Obligations. The Company may, from time to time while no Default exists, designate additional Obligations as constituting Guaranteed Obligations under this Agreement and the other Security Documents upon written notice to the Collateral Trustee from an Authorized Officer of the Company (a “Notice of Guaranteed Debt”), which Notice of Guaranteed Debt shall be delivered to the Collateral Trustee and each Secured Debt Representative simultaneously with Grantor’s execution and delivery of the Security Documents to the Trustee and, thereafter, at least three (3) Business Days prior to the date of the proposed addition of any additional Guaranteed Obligations (unless a shorter period of time has been approved in writing by the Collateral Trustee and each Secured Debt Representative) and such Notice of Secured Debt shall:
(a) The Investor hereby agrees specify the Obligations that are to become Guaranteed Obligations under this Agreement and the proposed date of such addition, and
(b) certify that (i) concurrently the incurrence or existence of such additional Guaranteed Obligations is in compliance with the execution and delivery terms of this Agreement, it shall execute and deliver to the Company a Limited Guaranty in favor each of the Company pursuant to which the Investor shall agree to guarantee the payment Secured Debt Documents and Article III of the Investor’s Guaranteed Percentage (as defined in its applicable Limited Guaranty) of the Guaranteed Obligations, on the terms and subject to the conditions set forth in its applicable Limited GuarantyGuaranty Agreement, and (ii) subject the Company is not, and after giving effect to Section 6.10(e)such incurrence of, it shall comply with its obligations or as a result of the existence of, such additional Guaranteed Obligations, would not be, in default under its applicable Limited Guaranty.
(b) The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any of them is) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b) and Section 6.10(e)Secured Debt Documents or the Guarantee Agreement, in the event that the Company does not enforce all the Limited Guaranties contemporaneously, the Investor shall contribute from time to time to the amount paid or payable by other Guarantors in respect of the Limited Guaranties (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by the Company of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination of this Agreement pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall not solicit from the Company, or permit the Company to give, any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same manner.and
(c) Subject to Section 6.11 provide the name and Section 7.1(d)address for notices under this Agreement of the Secured Debt Representative for such Guaranteed Obligations. If a Notice of Secured Debt is received by the Collateral Trustee in accordance with the immediately preceding sentence, in then the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out Obligations specified in such Limited Guaranty Notice of Guaranteed Obligations, shall be correspondingly increased become Guaranteed Obligations for purposes hereof upon the date specified in connection with such increase in Notice of Guaranteed Debt. Upon such effective date, the amount Company will deliver to each Secured Debt Representative a certificate of Parent Termination Feean Authorized Officer of the Company reflecting such additional Guaranteed Obligations and that such additional Guaranteed Obligations are now entitled to the benefits of this Agreement.
Appears in 1 contract
Sources: Collateral Trust Agreement (Environmental Power Corp)
Guaranteed Obligations. The Guarantor hereby irrevocably and unconditionally covenants and undertakes to cause the parties named in this Clause 2.1 to fully and timely perform the following obligations (collectively, the “Guaranteed Obligations”):
(a) The Investor hereby agrees that the Project Company shall develop, construct and sell (i) concurrently including effecting pre-sales), or cause to be developed, constructed and sold, the Project and its residential units in accordance with the execution relevant milestones and delivery of this Agreement, it shall execute and deliver to the Company a Limited Guaranty in favor of the Company pursuant to which the Investor shall agree to guarantee the payment of the Investor’s Guaranteed Percentage (as defined in its applicable Limited Guaranty) of the Guaranteed Obligations, on the terms and subject to the conditions time periods set forth in its applicable Limited Guaranty, the Approved Budget and (ii) subject to Section 6.10(e), it shall comply with its obligations under its applicable Limited Guaranty.Business Plan;
(b) The Investor New Land shall reasonably cooperate fund or otherwise provide the Funded Pre-Construction Costs to the Project Company in defending any claim accordance with the Framework Agreement, the Approved Budget and Business Plan and the Joint Venture Agreement;
(c) the Project Company shall cause the Project to be Completed for an Aggregate Development Cost that does not exceed the Guarantors are equivalent amount or amounts specified in the Approved Budget and Business Plan (as adjusted or otherwise amended by the respective board of directors of the HK SPV and the Project Company pursuant to the Shareholders’ Agreement and/or the Joint Venture Agreement, as applicable, the “Budgeted Development Costs”);
(d) if the Class A Shareholders exercise the Put Option under the Shareholders Agreement, CHL SPV (or any of them is) liable Class B Shareholders succeeding to make payments under the Limited Guaranties. Subject to Section 6.10(b) and Section 6.10(e), CHL SPV’s interest in the event that the Company does not enforce all the Limited Guaranties contemporaneouslyHK SPV) shall timely purchase, the Investor shall contribute from time to time to the amount paid or payable by other Guarantors in respect cause another affiliate of the Limited Guaranties (other than any such amount paid or payable by a Guarantor solely arising to purchase, from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of the aggregate amount paid under Class A Shareholders all of the Limited GuarantiesClass A Shares for the Exit Price, multiplied by a fraction, pay the numerator of which is such Guarantor’s Maximum Amount (as defined in Exit Price and timely perform its other covenants and obligations under the applicable Limited Guaranty) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except Shareholders Agreement in connection with a release by such purchase;
(e) the Project Company shall, and the CHL SPV (or any Class B Shareholders succeeding to the CHL SPV’s interest in the HK SPV) shall cause the Project Company to, distribute the profits of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination of this Agreement pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall not solicit from the Company, or permit the Project Company to give, any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties HK SPV strictly in the same proportion or amends or waives accordance with the provisions of the other Limited Guaranties Joint Venture Agreement and the Project Company Articles of Association;
(f) the HK SPV shall, and the CHL SPV (or any Class B Shareholders succeeding to the CHL SPV’s interest in the same manner.HK SPV) shall cause the HK SPV to, distribute the profits of the HK SPV to the Class A Shareholders strictly in accordance with the provisions of the Shareholders Agreement; and
(cg) Subject the CHL SPV (or any Class B Shareholders succeeding to Section 6.11 and Section 7.1(d), the CHL SPV’s interest in the event HK SPV) shall cause the officers and directors of any increase the HK SPV and the Project Company appointed by, or appointed in the amount of Parent Termination Feedirection of, each Investor shall, if requested by Parent, agree the CHL SPV (or any Class B Shareholders succeeding to an amendment, restatement or replacement to such Investorthe CHL SPV’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase interest in the amount of Parent Termination FeeHK SPV) to take such actions and execution such documents and instruments to effect the distributions referred to in sub-sections (e) and (f) above.
Appears in 1 contract
Sources: Deed of Guarantee (China Housing & Land Development, Inc.)
Guaranteed Obligations. Guarantor hereby unconditionally, absolutely and irrevocably guarantees to Landlord all of the following: (a) the timely payment when due of all amounts due by Tenant under the Lease, including, without limitation, payment of all Base Rent, all other rent and all other amounts now or hereafter due by Tenant under the Lease, (b) the full and faithful performance and observance by Tenant of all terms, covenants, conditions, agreements and other obligations now or hereafter to be paid, performed or observed by Tenant under the Lease including, without limitation, all warranties and representations of Tenant and all indemnification obligations of Tenant in the Lease, in accordance with the terms of the Lease (all the foregoing terms, covenants, conditions, payment obligations, indemnities, agreements and other obligations described in 1(a) and 1(b) are collectively referred to as the “Lease Obligations”) and (c) agrees to pay on demand any and all costs, expenses and fees of any type whatsoever including, without limitation, reasonable attorneys’ fees and legal disbursements, incurred by Landlord in enforcing any rights of Landlord under this Guaranty (collectively, the “Expenses”). The Investor hereby agrees Lease Obligations and the Expenses are collectively referred to as the “Guaranteed Obligations,” which shall remain in effect for the term of this Guaranty; provided, however, that such Guaranteed Obligations shall be reduced to a maximum aggregate amount of Fifty Percent (50%) of all remaining Base Rent beginning on the first day of the sixth (6th) year following the Effective Date if the following conditions are satisfied: (i) concurrently with the execution and delivery Guarantor has maintained a ratio of this Agreement, it shall execute and deliver to the Company a Limited Guaranty in favor of the Company pursuant to which the Investor shall agree to guarantee the payment of the Investor’s Guaranteed Percentage EBITDAR (as defined in below) to total rent payable for the skilled nursing and assisted living facilities operated by Guarantor or its applicable Limited Guarantysubsidiaries (the “LG Facility Rent”) for the twenty four (24) month period then ended of the Guaranteed Obligations, on the terms and subject not less than 1.75 to the conditions set forth in its applicable Limited Guaranty, and 1.0; (ii) subject Tenant (i.e., all facility operators comprising Tenant) has maintained a ratio of EBITDAR to Section 6.10(e), it shall comply with its obligations under its applicable Limited Guaranty.
total rent payable for all of Tenant’s facilities (b) The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any of them is) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b) and Section 6.10(e), in the event that aggregate) for the Company does twenty four (24) month period then ended of not enforce all the Limited Guaranties contemporaneously, the Investor shall contribute from time less than 1.30 to time to the amount paid or payable by other Guarantors in respect of the Limited Guaranties 1.0; and (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guarantyiii) so that after such contributions, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by the Company of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination of this Agreement pursuant to Section 7.1(d), the Investor acknowledges and agrees that it there shall not solicit from exist any material uncured default under this Guaranty or the Company, or permit the Company to give, any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same mannerLease.
(c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Fee.
Appears in 1 contract
Sources: Guaranty of Master Lease (MedEquities Realty Trust, Inc.)
Guaranteed Obligations. Subject to the limitations in Section 1.8 hereof, Guarantor hereby unconditionally and irrevocably guaranties to Lender the due, punctual and full payment and performance of, and covenants with Lender to duly, punctually and fully pay and perform, and to be fully liable to Lender for, the following as and when such payment shall become due (whether by acceleration or otherwise) in accordance with the terms of the Loan Documents (including without limitation attorney's fees and disbursements and collection costs incurred in connection therewith) (collectively, the “Guaranteed Obligations”):
(a) The Investor hereby agrees that (i) concurrently with all indebtedness of Borrower to Lender evidenced by the execution Note, both principal and delivery of this Agreement, it shall execute and deliver to the Company a Limited Guaranty in favor of the Company pursuant to which the Investor shall agree to guarantee the payment of the Investor’s Guaranteed Percentage (as defined in its applicable Limited Guaranty) of the Guaranteed Obligations, on the terms and subject to the conditions set forth in its applicable Limited Guarantyinterest, and (ii) subject any refinancing or refunding of any thereof, and all other amounts due or to Section 6.10(e)become due under the Note, it shall comply with its obligations under its applicable Limited Guaranty.Mortgage and the other Loan Documents, and any refinancing or refunding of any thereof, whether now existing or hereafter arising, contracted or incurred; and
(b) The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any all covenants, agreements, obligations and liabilities of them is) liable to make payments Borrower under the Note and the other Loan Documents and the Environmental Indemnification Agreement dated January 17, 2012 from Borrower and Glimcher Properties Limited Guaranties. Subject to Section 6.10(b) and Section 6.10(ePartnership in favor of Lender (the “Environmental Indemnity”), in whether now existing or hereafter arising, contracted or incurred. This Guaranty and the event that Guaranteed Obligations are to be secured by, inter alia, a Mortgage, Security Agreement, Financing Statement and Fixture Filing (Second Priority) executed and delivered by Guarantor (as the Company does not enforce all the Limited Guaranties contemporaneouslysame may be amended, the Investor shall contribute modified or supplemented from time to time, the “Guarantor Second Mortgage”), and an Assignment of Rents and Leases (Second Priority) executed and delivered by Guarantor (as the same may be amended, modified or supplemented from time to time, the amount paid or payable by other Guarantors “Guarantor Second Assignment of Rents”), each of even date herewith and each such instrument intended to be recorded in respect the real estate records of the Limited Guaranties (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate county and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (state where the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by the Company of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination of this Agreement pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall not solicit from the Company, or permit the Company to give, any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same manner.
(c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum AmountPremises” and “Guaranteed Percentage” as set out described in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Fee.instrument is located;
Appears in 1 contract
Guaranteed Obligations. (a) The Investor Guarantor hereby agrees that it absolutely, irrevocably and unconditionally guarantees to The City, as a direct obligation, (i) concurrently with the execution full and delivery prompt payment when due, of this Agreementall amounts due under the Event Centre Agreements, it shall execute or any of them, including, without limitation, interest, charges and deliver to other amounts of any kind whatsoever payable under the Company a Limited Guaranty in favor of the Company pursuant to which the Investor shall agree to guarantee the payment of the Investor’s Guaranteed Percentage (as defined in its applicable Limited Guaranty) of the Guaranteed Obligations, on the terms and subject to the conditions set forth in its applicable Limited Guaranty, Event Centre Agreements by CSERELP; and (ii) subject the full and prompt observance and performance of all other covenants, provisions, undertakings and obligations of whatsoever kind contained in or arising out of the Event Centre Agreements, or any of them, which are to Section 6.10(ebe observed and performed by CSERELP under the Event Centre Agreements (collectively the “Guaranteed Obligations”), it shall comply with its obligations under its applicable Limited Guaranty.
(b) The Investor shall reasonably cooperate in defending If any claim that or all of the Guarantors Guaranteed Obligations are (not duly paid or any of them is) liable to make payments performed by CSERELP under the Limited Guaranties. Subject to Section 6.10(bterms of the Event Centre Agreements for any reason whatsoever, Guarantor shall, as a separate and distinct obligation, (i) and Section 6.10(e), make good in the event that the Company does not enforce all the Limited Guaranties contemporaneously, the Investor shall contribute from time to time to the amount paid or payable by other Guarantors place and stead of CSERELP each and every Guaranteed Obligation in respect of which CSERELP failed to perform or breached, perform the Limited Guaranties Guaranteed Obligations which are unfulfilled at the time of such event, and pay the Guaranteed Obligations which are unpaid at the time of such event; and (ii) indemnify and save harmless The City from and against all losses resulting from the failure of CSERELP to pay or perform such Guaranteed Obligations, other than any such amount paid Guaranteed Obligations for which CSERELP has a defence or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributionsis otherwise unenforceable against CSERELP unless, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than in any such amount paid case, such defence or payable by a Guarantor solely arising unenforceability results from such Guarantor’s breach an Event of its obligations under such Guarantor’s Limited Guaranty), but net Insolvency in respect of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all GuarantorsCSERELP; provided that, subject to the following sentence, that in no event shall the Contribution Amount paid Guarantor be liable for consequential or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by punitive damages excepting those arising from fraud, fraudulent misrepresentations or wilful misconduct on the Company of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination of this Agreement pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall not solicit from the Company, or permit the Company to give, any release, amendment or waiver part of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same mannerGuarantor.
(c) Subject to Section 6.11 Each and Section 7.1(d)every default in performance, in the event observance or payment of any increase in of the amount Guaranteed Obligations by CSERELP shall give rise to a separate claim and cause of Parent Termination Feeaction hereunder, and separate claims or suits may be made and brought, as the case may be, hereunder as each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Feedefault occurs.
Appears in 1 contract
Sources: Guarantee
Guaranteed Obligations. (a) The Investor hereby agrees that (i) concurrently with the execution and delivery of this Agreement, it shall execute and deliver to the Company a Limited Guaranty in favor of the Company pursuant to which the Investor shall agree to guarantee the payment of the Investor’s Guaranteed Percentage (as defined in its applicable Limited Guaranty) of the Guaranteed Obligations, on the terms and subject to the conditions set forth in its applicable Limited Guaranty, and (ii) subject to Section 6.10(e), it shall comply with its obligations under its applicable Limited Guaranty.
(b) The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any of them is) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b) 8.01, each Guarantor hereby absolutely, unconditionally and Section 6.10(e)irrevocably guarantees the punctual performance and payment when due, in whether at scheduled maturity or on any date of a required prepayment or delivery or by acceleration, demand or otherwise, of all obligations of the event that the Company does not enforce all the Limited Guaranties contemporaneously, the Investor shall contribute from time to time to the amount paid Borrower now or payable by other Guarantors hereafter existing under or in respect of the Limited Guaranties (Credit Agreement and the other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) Loan Documents (the “Contribution AmountGuaranteed Documents”) equal to the product (including any extensions, modifications, substitutions, amendments or renewals of the aggregate amount paid under any or all of the Limited Guarantiesforegoing Secured Obligations), multiplied whether direct or indirect, absolute or contingent, and whether for principal, interest, premiums, fees, indemnities, contract causes of action, costs, expenses or otherwise (such obligations being the “Guaranteed Obligations”), and agrees to pay any and all expenses (including fees and expenses of counsel in accordance with Section 8.03) incurred by a fractionthe Administrative Agent or any other Secured Party in enforcing any rights under this Agreement or any other Guaranteed Document in accordance with Section 8.03. Without limiting the generality of the foregoing, the numerator of which is such each Guarantor’s Maximum Amount (as defined liability shall extend to all amounts that constitute part of the Guaranteed Obligations and would be owed by the Borrower to any Secured Party under or in respect of the applicable Limited Guaranty) and Guaranteed Documents but for the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject fact that they are unenforceable or not allowable due to the following sentence, in no event shall existence of any Insolvency Proceeding involving the Contribution Amount paid or to Borrower. Guaranty Absolute Each Guarantor guarantees that the Guaranteed Obligations will be paid by strictly in accordance with the terms of the Guaranteed 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 exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except or in connection with a release by the Company of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination respect of this Agreement pursuant are independent of the Guaranteed Obligations or any other obligations of any other Loan Party under or in respect of the Loan Documents, and a separate action or actions may be brought and prosecuted against such Guarantor to Section 7.1(d)enforce this Agreement, the Investor acknowledges irrespective of whether any action is brought against any other Loan Party or whether any other Loan Party is joined in any such action or actions. The liability of each Guarantor under this Agreement shall be irrevocable, absolute and agrees that unconditional irrespective of, and each Guarantor hereby irrevocably waives any defenses it shall not solicit from the Company, may now have or permit the Company to givehereafter acquire in any way relating to, any release, amendment or waiver all of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same manner.
(c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Fee.following:
Appears in 1 contract
Sources: Guaranty (Midway Gold Corp)
Guaranteed Obligations. (a) The Investor Guarantor hereby agrees that unconditionally, absolutely and irrevocably guarantees to Beneficiary, as primary obligor and not merely as surety, the full, prompt and complete payment, as when due and payable, of all monetary obligations and the due and punctual performance, as and when due, of all covenants, agreements, obligations and liabilities of Obligor due to Beneficiary, whether owed jointly or severally (iwith Guarantor or with any other Person) concurrently and whether owed as principal or surety or in any other capacity, in each case arising under and in accordance with the execution and delivery or in respect of this Agreement, it shall execute and deliver to the Company a Limited Guaranty in favor any of the Company pursuant to which Transaction Documents (including the Investor shall agree to guarantee Transaction Documents listed in Schedule 1 hereto), as if Guarantor were party thereto, now or hereafter existing or arising, whether for any payment obligations, reimbursement obligations, interest, fees, expenses or otherwise and whether direct or indirect, absolute, actual or contingent (collectively, the payment of the Investor’s Guaranteed Percentage (as defined in its applicable Limited Guaranty) of the “Guaranteed Obligations, on the terms and subject to the conditions set forth in its applicable Limited Guaranty, and (ii) subject to Section 6.10(e”), it shall comply with its obligations under its applicable Limited Guaranty.
(b) The Investor obligations of Guarantor hereunder shall reasonably cooperate be an absolute and unconditional guarantee of payment and performance to be made or performed strictly in defending any claim accordance with the terms hereof. Guarantor further agrees that the Guarantors are (or any of them is) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b) and Section 6.10(e)this Guarantee, in the event that the Company does not enforce all the Limited Guaranties contemporaneously, the Investor shall contribute from time to time to the amount paid or payable by other Guarantors in respect extent it requires payment of the Limited Guaranties (other than any such amount paid or payable by monies, constitutes a Guarantor solely arising from such Guarantor’s breach guarantee of its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate payment when due and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach not of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which collection and is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid way conditional or contingent upon any attempt to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by the Company of any Guarantor collect from its liabilities and obligations under its Limited Guaranty in connection with a termination of this Agreement pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall not solicit from the Company, or permit the Company to give, any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same mannerObligor.
(c) Subject to Except as set forth in Section 6.11 and Section 7.1(d1.1(d), Guarantor hereby unconditionally waives any requirement that Beneficiary proceeds against Obligor or otherwise exhausts any right, power or remedy under the Transaction Documents, before requesting payment or performance by Guarantor hereunder or that Beneficiary protects, secures, perfects or insures any security interest or lien or any property subject thereto or exhausts any other right to take any action against Obligor or any collateral.
(d) Beneficiary agrees that it will not make a demand against Guarantor under this Guarantee with respect to a Guaranteed Obligation unless (i) Beneficiary shall have first made a demand against Obligor with respect to such Guaranteed Obligation and (ii) such Guaranteed Obligation is not paid or performed in full within five (5) business days of such demand against Obligor. The provisions of this Section 1.1(d) shall not apply at any time that an “Insolvency Event” (as such term is defined in Section 1.1(g)) shall have occurred or is imminent.
(e) For the event avoidance of doubt, despite any other provision of this Guarantee, Guarantor shall be entitled to assert as a defence to its obligations under this Guarantee the same contractual defences arising under the terms of the Transactions Documents (including limitations on liability and limitations on remedies) with respect to the Guaranteed Obligations as Obligor is entitled to assert under and in accordance with the terms of the Transaction Documents.
(f) Until all Guaranteed Obligations have been irrevocably discharged in full and unless Beneficiary otherwise directs in writing, Guarantor shall not exercise any rights of subrogation against Obligor with respect to any performance by Guarantor of its obligations under this Guarantee.
(g) If an Insolvency Event shall have occurred or is imminent, until all Guaranteed Obligations have been irrevocably paid, performed and discharged in full and Beneficiary is of the opinion that no such payment or performance or discharge is or is likely to become void, voidable or otherwise unenforceable or refundable, unless Beneficiary otherwise directs in writing, Guarantor shall not (i) exercise any rights which it may have by reason of performance by it on its obligations under this Guarantee or any other Transaction Document: (x) to be indemnified by Obligor; (y) to claim any contribution from any other guarantor of or provider of security for Obligor's obligations under any of the Transaction Documents; and/or (z) to take the benefit (in whole or in part and whether by way of subrogation or otherwise) of any increase in rights of Beneficiary under the amount of Parent Termination FeeTransaction Documents or any other guarantee or security taken pursuant to, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with, the Transaction Documents by Beneficiary or (ii) directly or indirectly claim or receive the benefit of any distribution, dividend or payment or prove or claim for any distribution, dividend or payment in competition with such increase in the amount of Parent Termination FeeBeneficiary, so as to diminish any distribution, dividend or payment which, but for that claim or proof, Beneficiary would be entitled to receive.
(h) In this Guarantee:
Appears in 1 contract
Guaranteed Obligations. (a) The Each Investor hereby agrees that (i) concurrently with the execution and delivery of this Agreement, it shall, or shall cause its applicable Affiliate(s) to, execute and deliver to the Company a Limited Guaranty in favor of the Company pursuant to which the such Investor or its applicable Affiliate(s) shall agree to guarantee the payment of the Investor’s Guaranteed Percentage of such Investor or its applicable Affiliate(s) (as defined in its applicable Limited Guaranty) of the Guaranteed Obligations, on the terms and subject to the conditions set forth in its applicable Limited Guaranty, and (ii) subject to Section 6.10(e), it or its applicable Affiliate(s) shall comply with its obligations under its applicable Limited Guaranty.
(b) The Each Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any of them is) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b) and Section 6.10(e), in the event that the Company does not enforce all the Limited Guaranties contemporaneously, the each Investor shall (if it is a Guarantor) (or shall cause each of its Affiliates that is a Guarantor to) contribute from time to time to the amount paid or payable by other Guarantors in respect of the Limited Guaranties (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always paid an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by the Company of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination of this Agreement pursuant to Section 7.1(d), the Each Investor acknowledges and agrees that it shall not (if it is a Guarantor) (or shall cause each of its Affiliates that is a Guarantor not to) solicit from the Company, or permit the Company to give, any release, amendment or waiver of the Limited Guaranty of such Investor (or such Investor’s Affiliate), unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same manner.
(c) Subject to Section 6.11 and Section 7.1(d), in In the event of any increase in the amount of Parent Termination Fee, each Investor shallshall (if it is a Guarantor) (or shall cause each of its Affiliates that is a Guarantor to), if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Fee.
Appears in 1 contract
Guaranteed Obligations. Create, incur, assume or permit to exist, or permit any of its Subsidiaries to create, incur, assume or permit to exist, any Guaranteed Obligations except:
(a) The Investor hereby agrees that (i) concurrently with the execution and delivery by endorsement of this Agreement, it shall execute and deliver instruments or items of payment for deposit to the Company a Limited Guaranty general account of any Loan Party;
(b) for Guaranteed Obligations existing on the Closing Date and set forth on Schedule 8.19;
(c) guarantees by the Borrower or its Subsidiaries of Debt expressly permitted under Section 8.02; provided, that guarantees of Subordinated Debt shall be subordinated on substantially similar terms;
(d) the Borrower and its Subsidiaries may become and remain liable with respect to contingent obligations in the form of customary indemnifications for agents, employees, consultants, officers and directors of such Loan Party;
(e) the Borrower and the Subsidiaries may become and remain liable with respect to contingent obligations in the form of customary and reasonable indemnification provisions or customary purchase price adjustments (based on post-closing audit adjustments) incurred in connection with acquisitions or sales or assets permitted hereunder to be made by the Borrower or any Subsidiary;
(f) the Borrower and its Subsidiaries may become and remain liable with respect to guarantees in favor of the Company Lenders and the Administrative Agent executed and delivered pursuant to which hereto;
(g) for performance, surety, bid, appeal and other similar bonds as expressly permitted under Section 8.01 or the Investor shall agree to guarantee definition of Permitted Liens;
(h) the payment Borrower and Subsidiaries may incur Guaranteed Obligations in respect of employment arrangements and other compensation arrangements entered into in connection with Permitted Acquisitions or otherwise in the ordinary course of business;
(i) the Borrower may incur Guaranteed Obligations in respect of obligations of Subsidiary Guarantors arising in the ordinary course of business;
(j) Subsidiary Guarantors may incur Guaranteed Obligations in respect of obligations of the Investor’s Guaranteed Percentage (as defined Borrower or other Subsidiary Guarantors arising in its applicable Limited Guaranty) the ordinary course of the Guaranteed Obligations, on the terms and subject to the conditions set forth in its applicable Limited Guaranty, and (ii) subject to Section 6.10(e), it shall comply with its obligations under its applicable Limited Guaranty.business;
(bk) The Investor shall reasonably cooperate in defending any claim that the Guarantors are (or any of them is) liable to make payments under the Limited Guaranties. Subject to Section 6.10(b) and Section 6.10(e), in the event that the Company does not enforce all the Limited Guaranties contemporaneously, the Investor shall contribute from time to time to the amount paid or payable by other Guarantors Borrower may incur Guaranteed Obligations in respect of the Limited Guaranties Insurance Subsidiary's obligations to pay professional liability insurance claims and expenses on a "claims reported" basis; and
(other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of l) the Borrower and its obligations under such Guarantor’s Limited Guaranty) so that after such contributions, each Guarantor shall have always paid Subsidiaries may incur Guaranteed Obligations in an aggregate amount (including contributions made pursuant to this Section 6.9 by such Guarantor or its applicable Affiliate and amounts paid under its Limited Guaranty (other than any such amount paid or payable by a Guarantor solely arising from such Guarantor’s breach of its obligations under such Guarantor’s Limited Guaranty), but net of contributions received from other Guarantors) (together with the “Contribution Amount”) equal to the product of the aggregate amount paid under all of the Limited Guaranties, multiplied by a fraction, the numerator of which is such Guarantor’s Maximum Amount (as defined in the applicable Limited Guaranty) and the denominator of which is the sum of all the Maximum Amounts (as defined in each applicable Limited Guaranty) of all Guarantors; provided that, subject to the following sentence, in no event shall the Contribution Amount paid or to be paid by each Guarantor exceed such Guarantor’s Maximum Amount as defined under such Guarantor’s Limited Guaranty. Except in connection with a release by the Company of any Guarantor from its liabilities and obligations under its Limited Guaranty in connection with a termination of this Agreement Debt incurred pursuant to Section 7.1(d), the Investor acknowledges and agrees that it shall 8.02(c)(xii) not solicit from the Company, or permit the Company to give, exceed $22,500,000 at any release, amendment or waiver of the Limited Guaranty of such Investor, unless the Company releases the other Guarantors under their respective Limited Guaranties in the same proportion or amends or waives the provisions of the other Limited Guaranties in the same mannerone time outstanding.
(c) Subject to Section 6.11 and Section 7.1(d), in the event of any increase in the amount of Parent Termination Fee, each Investor shall, if requested by Parent, agree to an amendment, restatement or replacement to such Investor’s Limited Guaranty, pursuant to which the applicable “Maximum Amount” and “Guaranteed Percentage” as set out in such Limited Guaranty shall be correspondingly increased in connection with such increase in the amount of Parent Termination Fee.
Appears in 1 contract
Sources: Credit Agreement (Team Health Inc)