Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows: (a) This Guaranty is a guaranty of payment when due and not of collectibility. (b) Collateral Agent may enforce this Guaranty upon the occurrence of an Event of Default, notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default. (c) The obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing Documents, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions. (d) Payment by any Guarantor of a portion, but not all, of the Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor's liability for any portion of the Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Agent is awarded a judgment in any suit brought to enforce any Guarantor's covenant to pay a portion of the Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guarantied Obligations. (e) Any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Obligations, (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Obligations and take and hold security for the payment of this Guaranty or the Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Obligations, any other guaranties of the Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty or the Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower or any security for the Guarantied Obligations; and (vi) exercise any other rights available to it under the Financing Documents. (f) This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Documents, at law, in equity or otherwise) with respect to the Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) of any Financing Document, or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Obligations, in each case whether or not in accordance with the terms of any Financing Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents or from the proceeds of any security for the Guarantied Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Obligations) to the payment of indebtedness other than the Guarantied Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Obligations; (vii) any defenses, set-offs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guarantied Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Obligations.
Appears in 2 contracts
Sources: Subsidiary Guaranty (Total Renal Care Holdings Inc), Subsidiary Guaranty (Total Renal Care Holdings Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Credit Party or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or any Hedge Agreements; and
(f) This this Guaranty and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or any Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of the Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which the Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Hologic Inc), Credit and Guaranty Agreement (Gen Probe Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between any Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of any Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing Documentsany Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against any Borrower or any of such other guarantors and whether or not any Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renewi)renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request iii)request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Swap Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or any Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or any Swap Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Swap Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Swap Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Swap Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which any Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Education Management LLC), Credit and Guaranty Agreement (Education Management LLC)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which that constitutes a legal or equitable discharge of a guarantor or surety other than payment Payment in full Full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which that has not been paid. Without limiting the generality of the foregoing, if Collateral Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Credit Party or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment Payment in full Full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Documents, Credit Documents at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure depart from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Credit Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Credit Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower the Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which that secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower that Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which that may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Karyopharm Therapeutics Inc.), Credit and Guaranty Agreement (Karyopharm Therapeutics Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between any Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Borrowers and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing Documents), and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against any Borrower or any of such other guarantors and whether or not any Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without ; and without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Credit Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Credit Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which Borrower any Credit Party may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Syntax-Brillian Corp), Debtor in Possession Credit and Guaranty Agreement (Syntax-Brillian Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collection; this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower any Credit Party and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Parent Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsParent Borrower’s, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Parent Borrower or any of such other guarantors and whether or not Parent Borrower or any other Guarantor is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Parent Borrower or any other Guarantor or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents.; and
(f) This each Guarantor waives, to the maximum extent permitted by law, all suretyship defenses available now or in the future under law or equity. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees that this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had has notice or knowledge of any of them: (i) any failure or omission to assert or enforce or any agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure depart from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Credit Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Credit Document or any agreement relating to such other guaranty or security; (iii) any of the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be is illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Parent Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue the perfection of, any subordination or failure to maintain the priority of, or any failure to enforce or release of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Parent Borrower or any other Credit Party may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit Agreement (AMC Networks Inc.), Credit and Guaranty Agreement (RLJ Entertainment, Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary Secured Party with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without paid and without limiting the generality of the foregoing, if Collateral Agent any Secured Party is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any Beneficiaryany Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Secured Party in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary Secured Party may have against any such security, in each case as such Beneficiary Secured Party in its discretion may determine consistent with the applicable Financing Document, Credit Document or the Intercreditor Agreement applicable Related Obligation Document and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents or any Related Obligation Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents or any Related Obligation Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events Events of defaultDefault) hereof, any of the other Credit Documents, any Financing Document, of the Related Obligation Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Credit Document, such Related Obligation Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Related Obligation Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness Indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness Indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary Secured Party might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's Secured Party’s consent to the change, reorganization or termination of the corporate or other structure or existence of the Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of, or any failure of priority of, a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which the Borrower may allege or assert against any Beneficiary Secured Party in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Revolving Credit Agreement (Source Interlink Companies Inc), Term Loan Agreement (Source Interlink Companies Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability;
(b) Collateral this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(c) The Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(cd) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor Guarantor, whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions.;
(de) Payment payment by any Guarantor of a portion, but not all, of the Guarantied applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied applicable Guaranteed Obligations which has not been paid. Without paid (without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied applicable Guaranteed Obligations.);
(ef) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied applicable Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied applicable Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied applicable Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied applicable Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied applicable Guaranteed Obligations, any other guaranties of the Guarantied applicable Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied applicable Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied applicable Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Credit Party or any security for the Guarantied applicable Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or any Hedge Agreements; and
(fg) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied applicable Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or any Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied applicable Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied applicable Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied applicable Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied applicable Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied applicable Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied applicable Guaranteed Obligations) to the payment of indebtedness other than the Guarantied applicable Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied applicable Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of the Borrower or any of its Subsidiaries subsidiaries and to any corresponding restructuring of the Guarantied applicable Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied applicable Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guarantied applicable Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied applicable Guaranteed Obligations, (ix) any insolvency or similar proceedings and (x) any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case however fundamental and of whatsoever nature and whether or not more onerous) or replacement of any Credit Document or any other document or Collateral (including, without limitation, any change in the purpose of, any extension of, or any variation or increase in any facility or amount made available under any facility or the addition of any new facility under any Credit Document or other document or security).
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Concordia International Corp.), Credit and Guaranty Agreement (Concordia International Corp.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(ai) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability and this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(bii) Collateral Agent the Credit Party may enforce this Guaranty upon during the occurrence continuation of an Event of Default, Default notwithstanding the existence of any dispute between Borrower the Company and any Beneficiary with respect to the existence of such Event of Default.;
(ciii) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower the Company, any such other guarantor or any of such other guarantors Person and whether or not Borrower the Company, any such other guarantor or any other Person is joined in any such action or actions.;
(div) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Agent is the Beneficiaries are awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(ev) Any any Beneficiary, upon such terms as it deems appropriateappropriate under the relevant Transaction Document, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Credit Party or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Transaction Documents.; and
(fvi) This this Guaranty and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied ObligationsGuaranteed Obligations (other than contingent indemnification obligations for which no claim has been made)), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Transaction Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Transaction Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Transaction Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Transaction Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower the Company or any of its Restricted Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations, whether or not consented to by any Beneficiary; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which Borrower the Company or any other Person may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations. Anything contained in this Agreement to the contrary notwithstanding, the obligations of each Guarantor in respect of its Guaranty shall be limited to an aggregate amount equal to the largest amount that would not render its obligations under this Agreement subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any similar federal or state law; provided, however, that this limitation shall not apply to the Company with respect to its Direct Company Obligations.
Appears in 2 contracts
Sources: Convertible Note Purchase Agreement (DoorDash Inc), Convertible Note Purchase Agreement (DoorDash Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Borrowers and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Borrowers and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrowers, and a separate action or actions may be brought and prosecuted against such Guarantor Guarantor, subject to Section 7.13, whether or not any action is brought against Borrower Borrowers or any of such other guarantors and whether or not Borrower is Borrowers are joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied applicable Guaranteed Obligations which has not been paid, subject to Section 7.13. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied applicable Guaranteed Obligations., in each case, subject to Section 7.13;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied applicable Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied applicable Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied applicable Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied applicable Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied applicable Guaranteed Obligations, any other guaranties of the Guarantied applicable Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied applicable Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied applicable Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Borrowers or any security for the Guarantied applicable Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or any Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Obligationsapplicable Guaranteed Obligations (other than as set forth in Section 7.13)), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or any Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied applicable Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied applicable Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied applicable Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied applicable Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied applicable Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied applicable Guaranteed Obligations) to the payment of indebtedness other than the Guarantied applicable Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied applicable Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guarantied applicable Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied applicable Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Borrowers may allege or assert against any Beneficiary in respect of the Guarantied applicable Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied applicable Guaranteed Obligations.
Appears in 2 contracts
Sources: First Lien Credit and Guaranty Agreement (Arizona Chemical Ltd.), First Lien Credit and Guaranty Agreement (Arizona Chemical Ltd.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor Guarantor or surety other than payment in full of the Guarantied applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary Lender with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor Guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the Borrower or any of such other guarantors Guarantors and whether or not the Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied applicable Guaranteed Obligations.;
(e) Any Beneficiaryany Lender, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty or the Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower or any security for the Guarantied Guaranteed Obligations; and (viv) exercise any other rights available to it under the Financing Loan Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied applicable Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Loan Document or any agreement relating to such other guaranty or securityguaranty; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents or from the proceeds of any security for the Guarantied Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied ObligationsLoan Documents) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary Lender might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's Lender’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Subsidiaries Group Member and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Obligations; (vii) any defenses, set-offs or counterclaims which the Borrower may allege or assert against the Administrative Agent or any Beneficiary Lender in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viiivii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations; and (viii) any action that the Lenders may take in relation to the approval of a composition of creditors (convenio) in an insolvency proceeding of the Borrower, including any vote in favor of such composition of creditors.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Grifols SA), Credit and Guaranty Agreement (Grifols SA)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing Documents, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or any Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or any Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower U.S. Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Second Lien Credit and Guaranty Agreement (Arizona Chemical Ltd.), Second Lien Credit and Guaranty Agreement (Arizona Chemical Ltd.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence and during the continuance of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith, the applicable Financing Document, Permitted Hedge Agreement or the Intercreditor applicable Permitted Cash Management Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents., the Permitted Hedge Agreements or the Permitted Cash Management Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents, the Permitted Hedge Agreements or the Permitted Cash Management Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Documentof the Permitted Hedge Agreements, any of the Permitted Cash Management Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Permitted Hedge Agreement, such Permitted Cash Management Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents Credit Documents, any of the Permitted Hedge Agreements, any of the Permitted Cash Management Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness Indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness Indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holding or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Covanta Holding Corp), Credit and Guaranty Agreement (Covanta Holding Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral subject to Section 8.2, Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower and any Beneficiary Secured Party with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any Beneficiaryany Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Secured Party in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary Secured Party may have against any such security, in each case as such Beneficiary Secured Party in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or any Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or any Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary Secured Party might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's Secured Party’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Parent or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower may allege or assert against any Beneficiary Secured Party in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Mills Limited Partnership), Credit and Guaranty Agreement (Mills Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability;
(b) Collateral this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(c) Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(cd) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor Guarantor, whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions.;
(de) Payment payment by any Guarantor of a portion, but not all, of the Guarantied applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied applicable Guaranteed Obligations which has not been paid. Without paid (without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied applicable Guaranteed Obligations.);
(ef) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied applicable Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied applicable Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied applicable Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied applicable Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied applicable Guaranteed Obligations, any other guaranties of the Guarantied applicable Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied applicable Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied applicable Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Credit Party or any security for the Guarantied applicable Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or any Hedge Agreements; and
(fg) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied applicable Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or any Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied applicable Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied applicable Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied applicable Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied applicable Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied applicable Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied applicable Guaranteed Obligations) to the payment of indebtedness other than the Guarantied applicable Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied applicable Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of the Borrower or any of its Subsidiaries subsidiaries and to any corresponding restructuring of the Guarantied applicable Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied applicable Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guarantied applicable Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied applicable Guaranteed Obligations; (ix) any insolvency or similar proceedings and (x) any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case however fundamental and of whatsoever nature and whether or not more onerous) or replacement of any Credit Document or any other document (including, without limitation, any change in the purpose of, any extension of, or any variation or increase in any facility or amount made available under any facility or the addition of any new facility under any Credit Document or other document).
Appears in 2 contracts
Sources: Extended Equity Bridge Credit and Guaranty Agreement (Concordia Healthcare Corp.), Two Year Equity Bridge Credit and Guaranty Agreement (Concordia Healthcare Corp.)
Liability of Guarantors Absolute. Each Except as otherwise provided in any order of the Bankruptcy Court, each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations (other than Remaining Obligations). In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability;
(b) Collateral this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(c) the Administrative Agent may enforce this Guaranty upon the occurrence and during the continuance of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary Secured Party with respect to the existence of such Event of Default.;
(cd) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor to enforce this Guaranty whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.;
(de) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paidpaid when due. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(ef) Any Beneficiaryany Secured Party, upon such terms as it deems appropriate, without notice or demand (except to the extent notice is required to be provided hereunder, in any other Credit Document or under applicable Law) and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Secured Party in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary Secured Party may have against any such security, in each case as such Beneficiary Secured Party in its reasonable discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonablereasonable (but so long as such sale is in accordance with applicable Law), and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents.; and
(fg) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations (other than Remaining Obligations) or unless the obligations of the Guarantors are reduced or terminated by the Agent and applicable Secured Parties in accordance with the terms of this Agreement), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Documentthe other Credit Documents, or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Credit Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary Secured Party might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Obligations; (viiv) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; and (viiv) any defenses, set-offs or counterclaims which the Borrower may allege or assert against any Beneficiary Secured Party in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viiivi) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Restructuring Support Agreement (2U, Inc.), Debt and Guaranty Agreement (2U, Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) the Collateral Agent and Specified Purchasers may enforce this Guaranty upon the occurrence of an a Put Option Event of Default, notwithstanding the existence of any dispute between Borrower the Seller Parties and any Beneficiary with respect to the existence of such Event of Default.Put Option Event;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents other Seller Parties and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsSeller Parties, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower the Seller Parties or any of such other guarantors and whether or not Borrower any Seller Party is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if the Collateral Agent or any Purchaser is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial non-judicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any Seller Party or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Transaction Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full in cash of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Transaction Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Transaction Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Transaction Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Transaction Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness or obligations other than the Guarantied Guaranteed Obligations) to the payment of indebtedness or obligations other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower any Seller Party or any of its their Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which Borrower any Seller Party may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Funding Agreement (BridgeBio Pharma, Inc.), Funding Agreement (BridgeBio Pharma, Inc.)
Liability of Guarantors Absolute. Each To the extent permitted under applicable law, each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment satisfaction in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This Guaranty this Loan Guarantee is a guaranty guarantee of payment and performance when due and not of collectibility.collectability. This Loan Guarantee is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral to the extent permitted under Requirements of Law, the Administrative Agent may enforce this Guaranty Loan Guarantee upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between any Borrower and any Beneficiary Secured Party with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of any Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing Documentsany Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against any Borrower or any of such other guarantors and whether or not any Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any Beneficiaryany Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Secured Party in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary Secured Party may have against any such security, in each case as such Beneficiary Secured Party in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement or agreement relating to Banking Services Obligations and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Loan Documents or any agreement relating to Derivative Transactions or Banking Services Obligations; and
(f) This Guaranty this Loan Guarantee and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsLoan Documents or any agreements relating to Derivative Transactions or Banking Services, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty guarantee of or security for the payment or performance of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Loan Documents, any Financing Document, agreements relating to Derivative Transactions or Banking Services or any agreement or instrument executed pursuant thereto, or of any other guaranty guarantee or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Loan Document, such agreement relating to Derivatives Transactions or Banking Services or any agreement relating to such other guaranty guarantee or security; (iii) to the Guarantied extent permitted by applicable law, the Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents Loan Documents, any agreements relating to Derivative Transactions or Banking Services or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary Secured Party might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's Secured Party’s consent to the change, reorganization or termination of the corporate or other structure or existence of any Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) to the extent permitted by applicable law, any defenses, set-offs or counterclaims which any Borrower may allege or assert against any Beneficiary Secured Party in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit Agreement (Bausch Health Companies Inc.), Restatement Agreement (Valeant Pharmaceuticals International, Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.; this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower any Credit Party and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Focal Communications Corp), Credit and Guaranty Agreement (Focal Communications Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Credit Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Credit Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (SolarWinds, Inc.), Credit and Guaranty Agreement (SolarWinds, Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral the Administrative Agent may enforce this Guaranty upon the occurrence and during the continuance of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Loan Documents or any Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsLoan Documents or any Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Loan Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Loan Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which the Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (RadNet, Inc.), Credit and Guaranty Agreement (RadNet, Inc.)
Liability of Guarantors Absolute. Each The Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each the Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of the Guarantor and not merely a contract of surety;
(b) Collateral Agent may enforce this Guaranty upon the occurrence of an Event of Default, notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.
(c) The obligations of each the Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such the Guarantor whether or not any action is brought against Borrower the Company or any of such other guarantors and whether or not Borrower the Company is joined in any such action or actions.;
(dc) Payment payment by any the Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any the Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Agent the Lender is awarded a judgment in any suit brought to enforce any the Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such the Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guarantied Obligations.;
(ed) Any Beneficiarythe Lender, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any the Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary the Lender in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary the Lender may have against any such security, in each case as such Beneficiary the Lender in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial non-judicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any the Guarantor against Borrower the Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Loan Documents.; and
(fe) This this Guaranty and the obligations of Guarantors Guarantor hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any the Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Loan Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary the Lender might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's the Lender’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower the Guarantor, the Company or any of its their respective Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower the Company may allege or assert against any Beneficiary the Lender in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any the Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit Agreement (Montpelier Re Holdings LTD), Credit Agreement (Montpelier Re Holdings LTD)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon during the occurrence Continuance of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Interest Rate Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or Interest Rate Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or any Interest Rate Agreement, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Interest Rate Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Interest Rate Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Interest Rate Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Speed Commerce, Inc.), Credit and Guaranty Agreement (Speed Commerce, Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability and this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral the Administrative Agent may enforce this Guaranty upon during the occurrence continuation of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriateappropriate under the relevant Loan Document or Secured Swap Agreement, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the herewith or any applicable Financing Document, the Intercreditor Secured Swap Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Loan Party or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Loan Documents or any Secured Swap Agreement; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Obligations)Guaranteed Obligations (other than contingent indemnification obligations for which no claim has been made, and the termination Obligations in respect of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments Secured Swap Agreements and the cancellation or expiration or cash collateralization of all Letters of CreditCredit in an amount equal to 105% of Letter of Credit Usage at such time on terms reasonably satisfactory to Issuing Bank)), including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, any Secured Swap Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Loan Documents, any Financing Document, Secured Swap Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Loan Document, such Secured Swap Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents Loan Documents, any Secured Swap Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of the Borrower or any of its Restricted Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which the Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations. Anything contained in this Agreement to the contrary notwithstanding, the obligations of each Guarantor under this Agreement shall be limited to an aggregate amount equal to the largest amount that would not render its obligations under this Agreement subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any similar federal or state law.
Appears in 2 contracts
Sources: Revolving Credit and Guaranty Agreement (Fitbit Inc), Revolving Credit and Guaranty Agreement (Fitbit Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability and this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral the Administrative Agent may enforce this Guaranty upon during the occurrence continuation of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower the Borrower, any such other guarantor or any of such other guarantors Person and whether or not Borrower the Borrower, any such other guarantor or any other Person is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriateappropriate under the relevant Loan Document, Secured Swap Agreement or Secured Cash Management Services Agreement, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the herewith or any applicable Financing Document, the Intercreditor Secured Swap Agreement or Secured Cash Management Services Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Loan Party or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Loan Documents or any Secured Swap Agreement or Secured Cash Management Services Agreement; and
(f) This this Guaranty and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Obligations), Guaranteed Obligations (other than contingent indemnification obligations for which no claim has been made and the termination Obligations in respect of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments Secured Swap Agreements or Secured Cash Management Services) and the cancellation or expiration or cash collateralization of all Letters of CreditCredit in an amount equal to 103% of Letter of Credit Usage at such time on terms satisfactory to the applicable Issuing Banks), including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, any Secured Swap Agreements, any Secured Cash Management Services Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Loan Documents, any Financing DocumentSecured Swap Agreements, any Secured Cash Management Services Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Loan Document, such Secured Swap Agreement, such Secured Cash Management Services Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents Loan Documents, any Secured Swap Agreements or any Secured Cash Management Services Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of the Borrower or any of its Restricted Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations, whether or not consented to by any Beneficiary; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which the Borrower or any other Person may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations. Anything contained in this Agreement to the contrary notwithstanding, the obligations of each Guarantor in respect of its Guaranty shall be limited to an aggregate amount equal to the largest amount that would not render its obligations under this Agreement subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any similar federal or state law; provided, however, that this limitation shall not apply to the Borrower with respect to its Direct Borrower Obligations.
Appears in 2 contracts
Sources: Revolving Credit and Guaranty Agreement (Dropbox, Inc.), Revolving Credit and Guaranty Agreement (Dropbox, Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Issuer and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Issuer and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsIssuer, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Issuer or any of such other guarantors and whether or not Borrower Issuer is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, in each case, to the extent permitted by the Note Documents; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial non-judicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Issuer or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Note Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Note Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Note Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Note Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Note Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which Borrower Issuer may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Senior Secured Note Purchase Agreement (Golden Arrow Merger Corp.), Subordination Agreement (Outbrain Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability;
(b) Collateral the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial non-judicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Loan Documents or any Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsLoan Documents or any Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Loan Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Loan Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Parent, Borrower or any of its their Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which the Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Amended and Restated Senior Secured Term Loan Facility Agreement (Ocwen Financial Corp), Senior Secured Term Loan Facility Agreement (Ocwen Financial Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Vca Antech Inc), Credit and Guaranty Agreement (American Reprographics CO)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall will not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability;
(b) Collateral [reserved];
(c) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary Secured Party with respect to the existence of whether such Event of Default.Default has occurred and is continuing;
(cd) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.;
(de) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall will in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall will not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall will not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(ef) Any Beneficiarythe Administrative Agent, on behalf of the Secured Parties, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary the Secured Parties in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary the Administrative Agent may have against any such security, in each case as such Beneficiary the Administrative Agent in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Secured Rate Contract or Bank Product Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents., the Secured Rate Contracts or the Bank Product Agreements; and
(fg) This this Guaranty and the obligations of Guarantors hereunder shall will be valid and enforceable and shall will not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall will have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents, the Secured Rate Contracts or the Bank Product Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Documentof the Secured Rate Contracts, the Bank Product Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Secured Rate Contract, such Bank Product Agreements or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents Credit Documents, any of the Secured Rate Contracts, any Bank Product Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary Secured Party might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's Secured Party’s consent to the change, reorganization or termination of the corporate or other structure or existence of the Borrower or any of its Subsidiaries Subsidiary and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which the Borrower may allege or assert against any Beneficiary Secured Party in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Cohu Inc), Credit and Guaranty Agreement (Cohu Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations (other than Remaining Obligations). In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability;
(b) Collateral this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(c) the Administrative Agent may enforce this Guaranty upon the occurrence and during the continuance of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary Secured Party with respect to the existence of such Event of Default.;
(cd) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor to enforce this Guaranty whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.;
(de) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paidpaid when due. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(ef) Any Beneficiaryany Secured Party, upon such terms as it deems appropriate, without notice or demand (except to the extent notice is required to be provided hereunder, in any other Credit Document or under applicable Law) and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Secured Party in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary Secured Party may have against any such security, in each case as such Beneficiary Secured Party in its reasonable discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonablereasonable (but so long as such sale is in accordance with applicable Law), and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents.; and
(fg) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations (other than Remaining Obligations) or unless the obligations of the Guarantors are reduced or terminated by the Agent and applicable Secured Parties in accordance with the terms of this Agreement), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Documentthe other Credit Documents, or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Credit Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary Secured Party might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Obligations; (viiv) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; and (viiv) any defenses, set-offs or counterclaims which the Borrower may allege or assert against any Beneficiary Secured Party in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viiivi) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (2U, Inc.), Term Loan Credit and Guaranty Agreement (2U, Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment Payment in full Full of the Guarantied US Guaranteed Obligations and the Canadian Guaranteed Obligations (collectively, the “Guaranteed Obligations”). In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This Guaranty is constitutes a guaranty of payment and performance when due and not of collectibilitycollection.
(b) Collateral The Administrative Agent acting for itself, the Lenders and the L/C Issuers may enforce this Guaranty upon the occurrence of an Event of Default, Default under the Loan Documents notwithstanding the existence of any dispute between any Borrower and the Administrative Agent, any Beneficiary Lender or any L/C Issuer with respect to the existence of such Event of Default.
(c) The obligations of each Guarantor hereunder are independent of the obligations of each Borrower under the Financing Loan Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of any Borrower under the Financing Loan Documents, and a separate action or actions may be brought and prosecuted against such each Guarantor to enforce this Guaranty, irrespective of whether or not any action is brought against any Borrower or any of such other guarantors and Loan Party or whether any Borrower or not Borrower any other Loan Party is joined in any such action or actions.
(d) Payment by any Guarantor the Guarantors of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Agent the Administrative Agent, any Lender or any L/C Issuer (or any Affiliate of a US Lender in the case of a Specified Swap Contract) is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such any Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guarantied Obligations.
(e) Any BeneficiaryThe Administrative Agent, the Lenders and the L/C Issuers (or any Affiliate of a US Lender in the case of a Specified Swap Contract) upon such terms as it deems they deem appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; , (iii) request and accept other guaranties of the Guarantied Obligations and take and hold security for the payment of this Guaranty or the Guarantied Guaranteed Obligations; , (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Obligations; Guaranteed Obligations and (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty or the Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower or any security for the Guarantied Obligations; and (vi) exercise any other rights available to it them under the Financing Loan Documents.
(f) This Guaranty and the obligations of Guarantors each Guarantor hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment Payment in full Full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any such Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or an agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) of any Financing Document, the Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document the Loan Documents or any agreement relating to such other guaranty or securityguaranty; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents or from the proceeds of any security for the Guarantied Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Obligations) to the payment of indebtedness of any Borrower other than the Guarantied Guaranteed Obligations, even though the Administrative Agent, any Beneficiary Lender or any L/C Issuer (or any Affiliate of a US Lender in the case of a Specified Swap Contract) might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) the Administrative Agent’s, any Beneficiary's Lender’s or any L/C Issuer’s (or any Affiliate of a US Lender in the case of a Specified Swap Contract) consent to the change, reorganization or termination of the corporate or other structure or existence of any Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Obligations; (vii) any defenses, set-offs or counterclaims which any Borrower may allege or assert against the Administrative Agent, any Beneficiary Lender or any L/C Issuer (or any Affiliate of a US Lender in the case of a Specified Swap Contract) in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viiivii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit Agreement (Schnitzer Steel Industries Inc), Credit Agreement (Schnitzer Steel Industries Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder under this Section 7 are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which that constitutes a legal or equitable discharge of a guarantor or surety other than payment in full in Cash of the Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This Guaranty its Obligations Guarantee is a guaranty guarantee of payment when due and not of collectibility.collectability and is a primary obligation of such Guarantor and not merely a contract of surety;
(b) Collateral the Administrative Agent may enforce this Guaranty its Obligations Guarantee upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary Secured Party with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations or of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Obligations which that has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Obligations.;
(e) Any Beneficiaryany Secured Party may, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of the Guarantees established under this Guaranty Section 7 or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Obligations, (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Obligations or any agreement relating thereto thereto, and/or subordinate the payment of the same to the payment of any other obligations; , (iii) request and accept other guaranties of the Guarantied Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Obligations; , (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Obligations, any other guaranties of the Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Obligations; , (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Secured Party in respect of this Guaranty hereof or the Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary Secured Party may have against any such security, in each case as such Beneficiary Secured Party in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Credit Party or any security for the Guarantied Obligations; , and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or any Hedge Agreements; and
(f) This Guaranty the Obligations Guarantee and the obligations of the Guarantors hereunder thereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Creditreason, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: them (in any case other than payment in full in Cash of the Obligations): (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or with respect to any Specified Hedge Obligations or any Specified Cash Management Obligations, at law, in equity or otherwise) with respect to the Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty guarantee of or security for the payment of the Guarantied Obligations; , (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Documentof the Specified Hedge Obligations, any of the Specified Cash Management Obligations or any agreement or instrument executed pursuant thereto, or of any other guaranty guarantee or security for the Guarantied Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Specified Hedge Obligation, such Specified Cash Management Obligation or any agreement relating to such other guaranty guarantee or security; , (iii) the Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; , (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents Credit Documents, any of the Specified Hedge Obligations or any Specified Cash Management Obligations or from the proceeds of any security for the Guarantied Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Obligations) to the payment of indebtedness other than the Guarantied Obligations, even though any Beneficiary Secured Party might have elected to apply such payment to any part or all of the Guarantied Obligations; , (v) any Beneficiary's Secured Party’s consent to the change, reorganization or termination of the corporate or other structure or existence of the Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Obligations; , (vi) any failure to perfect or continue perfection of a security interest in any collateral which that secures any of the Guarantied Obligations; , (vii) any defenses, set-offs or counterclaims which that the Borrower may allege or assert against any Beneficiary Secured Party in respect of the Guarantied Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; , and (viii) any other act or thing or omission, or delay to do any other act or thing, which that may or might in any manner or to any extent vary the risk of any Guarantor Subsidiary as an obligor in respect of the Guarantied Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (CVR Energy Inc), Credit and Guaranty Agreement (CVR Partners, Lp)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability;
(b) Collateral this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(c) Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(cd) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor Guarantor, whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions.;
(de) Payment payment by any Guarantor of a portion, but not all, of the Guarantied applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied applicable Guaranteed Obligations which has not been paid. Without paid (without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied applicable Guaranteed Obligations.);
(ef) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied applicable Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied applicable Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied applicable Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied applicable Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied applicable Guaranteed Obligations, any other guaranties of the Guarantied applicable Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied applicable Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied applicable Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Credit Party or any security for the Guarantied applicable Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or any Hedge Agreements; and
(fg) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied applicable Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or any Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied applicable Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied applicable Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied applicable Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied applicable Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied applicable Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied applicable Guaranteed Obligations) to the payment of indebtedness other than the Guarantied applicable Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied applicable Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of the Borrower or any of its Subsidiaries subsidiaries and to any corresponding restructuring of the Guarantied applicable Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied applicable Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guarantied applicable Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied applicable Guaranteed Obligations, (ix) any insolvency or similar proceedings and (x) any amendment, novation, supplement, extension (whether of maturity or otherwise) or restatement (in each case however fundamental and of whatsoever nature and whether or not more onerous) or replacement of any Credit Document or any other document or Collateral (including, without limitation, any change in the purpose of, any extension of, or any variation or increase in any facility or amount made available under any facility or the addition of any new facility under any Credit Document or other document or security).
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Concordia International Corp.), Credit and Guaranty Agreement (Concordia Healthcare Corp.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of such Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between any Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each such Guarantor hereunder are independent of the obligations of any Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing Documentsany Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against any Borrower or any of such other guarantors and whether or not any Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations., as the case may be;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, and take and hold security for the payment of this Guaranty hereof or the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, any other guaranties of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, provided, however, that no Credit Document to which such Guarantor is party may be amended without its written consent; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Agreement documentation creating Hedging Obligations and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial non-judicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the applicable documentation creating Hedging Obligations; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitationlimitation (subject, however, to the limitations applicable to certain Non-US Guarantors as set out in Section 7.14), impairment, discharge or termination for any reason (other than payment in full of the Guarantied Non-US Guaranteed Obligations and Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the applicable documentation creating Hedging Obligations, at law, in equity or otherwise) with respect to the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the applicable documentation creating Hedging Obligations or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such applicable documentation creating Hedging Obligations or any agreement relating to such other guaranty or security; (iii) the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the applicable documentation creating Hedging Obligations or from the proceeds of any security for the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Xerium or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (vii) any defenses, set-set offs or counterclaims which any Borrower may allege or assert against any Beneficiary in respect of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; (viii) any law or regulation of any jurisdiction or any other event affecting any term of the Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; and (viiiix) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be.
(g) Notwithstanding anything to the contrary herein or in any Credit Document, this guarantee given by any guarantor organized under Austrian law is meant to be and shall be interpreted as abstract guarantee (“abstrakter Garantievertrag”) and not as surety (“Buergschaft”), neither as a joint obligation as a borrower (“Mitschuldner”) and such Austrian Guarantor undertakes to pay unconditionally, irrevocably, upon first demand and without raising any defenses (“unbedingt, unwiderruflich, ueber erste Aufforderung und unter Verzicht auf alle Einwendungen”) any amounts demanded by any of the Beneficiaries under reference to this guarantee.
(h) Notwithstanding anything to the contrary herein or in any Credit Document, to the extent that this guarantee is granted by any guarantor organized under German law, such guarantee is granted in the form of an abstract guarantee (abstraktes Garantieversprechen) and not as a surety (Buergschaft) or as a joint obligation as borrower (Mitschuldübernahme), and any German Guarantor undertakes, subject to subsection 7.14(f) hereof, to pay unconditionally, irrevocably, upon first demand and without raising any defenses (unbedingt, unwiderruflich, auf erstes Anfordern und unter Verzicht auf alle Einwendungen und Einreden) any amounts demanded by any of the Beneficiaries under reference to this guarantee. Each German Guarantor hereby confirms to the Administrative Agent and each Beneficiary that (i) it has thoroughly read this guarantee and understands that it may be liable hereunder for payments in excess of the amounts of the Loans, (ii) it has discussed this guarantee with its legal counsel prior to entering into this Agreement, and (iii) in the past it has entered into such guarantees as a guarantor before.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Xerium Technologies Inc), Credit and Guaranty Agreement (Xerium Technologies Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that that, to the maximum extent permitted by applicable law, its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor Guarantor or surety other than payment Payment in full Full of the Guarantied applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees agrees, to the maximum extent permitted by applicable law, as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability;
(b) Collateral this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(c) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary Guaranteed Party with respect to the existence of such Event of Default.;
(cd) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.;
(de) Payment payment by any Guarantor of a portion, but not all, of the Guarantied applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied applicable Guaranteed Obligations.;
(ef) Any Beneficiaryany Guaranteed Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Guaranteed Party in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary Guaranteed Party may have against any such security, in each case as such Beneficiary Guaranteed Party in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Loan Documents.; and
(fg) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment Payment in full Full of the Guarantied applicable Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Documents, Loan Documents at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events Events of defaultDefault) hereof, any of any Financing Document, the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Loan Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respectrespect (other than with respect to defense of payment or performance in full); (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness Indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness Indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary Guaranteed Party might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's Guaranteed Party’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Subsidiaries Group Member and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defensesdefenses (other than defense of payment or performance in full), set-offs or counterclaims which the Borrower may allege or assert against any Beneficiary Guaranteed Party in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thingact, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit Agreement (PVH Corp. /De/), Credit Agreement (PVH Corp. /De/)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full the occurrence of the Guarantied ObligationsTermination Date. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Agent Any Lender may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower and any Beneficiary Lender with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Agent any Lender is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any Beneficiaryany Lender, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Lender in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary Lender may have against any such security, in each case as such Beneficiary Lender in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonableherewith, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Credit Party or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full the occurrence of the Guarantied ObligationsTermination Date), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Documentthe other Credit Documents, or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, or any agreement relating to such other guaranty or securityguaranty; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary Lender might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's Lender’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Lux 1 or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower may allege or assert against any Beneficiary Lender in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Mezzanine Credit and Guaranty Agreement (Isola Group Ltd.), Mezzanine Credit and Guaranty Agreement (Isola Group Ltd.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor Guarantor or surety other than payment in full of the Guarantied applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between any Borrower and any Beneficiary Secured Party with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of each Borrower under the Financing Documents and the obligations of any other guarantor Guarantor (including any other Guarantor) of the obligations of Borrower under the Financing Documentseach Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower or any of such other guarantors Guarantors and whether or not such Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied applicable Guaranteed Obligations.;
(e) Any Beneficiaryany Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Secured Party in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary Secured Party may have against any such security, in each case as such Beneficiary Secured Party in its discretion may determine consistent with herewith, the applicable Financing DocumentHedge Agreement, the Intercreditor Cash Management Agreement or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, sales and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied applicable Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Loan Documents, any Financing Documentof the Hedge Agreements, Cash Management Agreements or Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Loan Document, such Hedge Agreement, such Cash Management Agreement, such Treasury Transaction or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents Loan Documents, any of the Hedge Agreements, any of the Cash Management Agreements, any Treasury Transaction or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary Secured Party might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's Secured Party’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Subsidiaries Group Member and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which any Borrower may allege or assert against any Beneficiary Secured Party in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Grifols SA), Credit and Guaranty Agreement (Grifols Germany GmbH)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(ai) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability and this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(bii) Collateral Agent the Issuer Party may enforce this Guaranty upon during the occurrence continuation of an Event of Default, Default notwithstanding the existence of any dispute between Borrower the Note Obligors and any Beneficiary with respect to the existence of such Event of Default.;
(ciii) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Note Obligors and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsNote Obligors, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower the Note Obligors, any such other guarantor or any of such other guarantors Person and whether or not Borrower the Note Obligors, any such other guarantor or any other Person is joined in any such action or actions.;
(div) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Agent is the Beneficiaries are awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(ev) Any any Beneficiary, upon such terms as it deems appropriateappropriate under the relevant Transaction Document, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Issuer Party or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Transaction Documents.; and
(fvi) This this Guaranty and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied ObligationsGuaranteed Obligations (other than contingent indemnification obligations for which no claim has been made)), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Transaction Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Transaction Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Transaction Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Transaction Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower the Note Obligors or any of its their Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations, whether or not consented to by any Beneficiary; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which Borrower the Note Obligors or any other Person may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations. Anything contained in this Agreement to the contrary notwithstanding, the obligations of each Guarantor in respect of its Guaranty shall be limited to an aggregate amount equal to the largest amount that would not render its obligations under this Agreement subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any similar federal or state law; provided, however, that this limitation shall not apply to any Note Obligor with respect to its Direct Issuer Obligations.
Appears in 2 contracts
Sources: Sixth Amendment (Sonder Holdings Inc.), Note and Warrant Purchase Agreement (Gores Metropoulos II, Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral any Agent may enforce this Guaranty upon the occurrence and, during the continuance, of an Event of Default, Default notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents ▇▇▇▇▇▇▇▇ and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral any Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; , (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; , (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; , (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial non-judicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower or any security for the Guarantied Obligations; Guaranteed Obligations and (vi) exercise any other rights available to it under the Financing Loan Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Loan Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower any Loan Party or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations (other than the payment in full of the Obligations).
Appears in 2 contracts
Sources: First Amendment to and Waiver Under Second Amended and Restated Financing Agreement (Firefly Aerospace Inc.), Financing Agreement (Firefly Aerospace Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower is Company or such other guarantors are joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Sanmina-Sci Corp), Credit and Guaranty Agreement (Sanmina-Sci Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment (i) Payment in full Full of the Guarantied ObligationsGuaranteed Obligations (other than any contingent indemnification obligations arising under the Credit Documents for which no claims have been asserted) and (ii) termination of such Guarantor’s Obligations as provided in Section 7.12. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedging Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Credit Party or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or any Hedging Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment Payment in full Full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or any Hedging Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedging Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedging Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedging Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness Indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness Indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of the Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which the Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (TiVo Corp), Abl Credit and Guaranty Agreement (TiVo Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction limitations and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 2 contracts
Sources: Credit and Guaranty Agreement (Kraton Polymers LLC), Credit and Guaranty Agreement (Kraton Polymers LLC)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collection. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower any Credit Party and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Parent Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsParent Borrower’s, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Parent Borrower or any of such other guarantors and whether or not Parent Borrower or any other Guarantor is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Swap Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Parent Borrower or any other Guarantor or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or any Swap Agreements; and
(f) This each Guarantor waives, to the maximum extent permitted by law, all suretyship defenses available now or in the future under law or equity. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees that this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had has notice or knowledge of any of them: (i) any failure or omission to assert or enforce or any agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or any Swap Agreement, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure depart from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Swap Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Swap Agreement or any agreement relating to such other guaranty or security; (iii) any of the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be is illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Swap Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Parent Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue the perfection of, any subordination or failure to maintain the priority of, or any failure to enforce or release of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Parent Borrower or any other Credit Party may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (RLJ Entertainment, Inc.)
Liability of Guarantors Absolute. Each The Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment Payment in full Full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each the Guarantor agrees as follows:
(a) This Guaranty is Guarantee constitutes a guaranty Guarantee of payment and performance when due and not of collectibilitycollection.
(b) Collateral The Administrative Agent acting on behalf of the Canadian Lender and the Canadian Lender may enforce this Guaranty Guarantee upon the occurrence of an Event of Default, Default under the Loan Documents notwithstanding the existence of any dispute between Borrower the [Other] Canadian Borrower[s] and any Beneficiary the Administrative Agent or the Canadian Lender with respect to the existence of such Event of Default.
(c) The obligations of each the Guarantor hereunder are is independent of the obligations of Borrower the [Other] Canadian Borrower[s] under the Financing Loan Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower the [Other] Canadian Borrower[s] under the Financing Loan Documents, and a separate action or actions may be brought and prosecuted against such the Guarantor to enforce this Guarantee, irrespective of whether or not any action is brought against Borrower the [Other] Canadian Borrower[s] or any of such other guarantors and Loan Party or whether the [Other] Canadian Borrower[s] or not Borrower any other Loan Party is joined in any such action or actions.
(d) Payment by any the Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any the Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent or the Canadian Lender is awarded a judgment in any suit brought to enforce any the Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such the Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guarantied Obligations.
(e) Any Beneficiary, The Administrative Agent or the Canadian Lender upon such terms as it deems they deem appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty Guarantee or giving rise to any reduction, limitation, impairment, discharge or termination of any the Guarantor's ’s liability hereunder, from time to time time, may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; , (iii) request and accept other guaranties of the Guarantied Obligations and take and hold security for the payment of this Guaranty or the Guarantied Guaranteed Obligations; , (iv) release, surrender, exchange, substitute, compromise, settle, DWT 16166918v15 4900000-001225 rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantorguarantor) with respect to the Guarantied Obligations; Guaranteed Obligations and (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty or the Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower or any security for the Guarantied Obligations; and (vi) exercise any other rights available to it them under the Financing Loan Documents.
(f) This Guaranty Guarantee and the obligations of Guarantors the Guarantor hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment Payment in full Full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any the Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or an agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty guarantee of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) of any Financing Document, the Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security guarantee for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document the Loan Documents or any agreement relating to such other guaranty or securityguarantee; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents or from the proceeds of any security for the Guarantied Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Obligations) to the payment of indebtedness of the [Other] Canadian Borrower[s] other than the Guarantied Guaranteed Obligations, even though any Beneficiary the Administrative Agent or the Canadian Lender might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's the Administrative Agent’s or the Canadian Lender’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Subsidiaries [either of] the [Other] Canadian Borrower[s] and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Obligations; (vii) any defenses, set-offs or counterclaims which Borrower the [Other] Canadian Borrower[s] may allege or assert against any Beneficiary the Administrative Agent or the Canadian Lender in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viiivii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any the Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower the Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Borrowers and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrowers, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower the Borrowers or any of such other guarantors and whether or not any Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without ; and without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Credit Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Credit Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might could have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower the Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which any Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of such Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between any Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each such Guarantor hereunder are independent of the obligations of any Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing Documentsany Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against any Borrower or any of such other guarantors and whether or not any Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations., as the case may be;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, and take and hold security for the payment of this Guaranty hereof or the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, any other guaranties of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, provided, however, that no Credit Document to which such Guarantor is party may be amended without its written consent; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Agreement documentation creating Hedging Obligations and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial non-judicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the applicable documentation creating Hedging Obligations; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitationlimitation (subject, however, to the limitations applicable to certain Non-US Guarantors as set out in Section 7.14), impairment, discharge or termination for any reason (other than payment in full of the Guarantied Non-US Guaranteed Obligations and Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the applicable documentation creating Hedging Obligations, at law, in equity or otherwise) with respect to the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the applicable documentation creating Hedging Obligations or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such applicable documentation creating Hedging Obligations or any agreement relating to such other guaranty or security; (iii) the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the applicable documentation creating Hedging Obligations or from the proceeds of any security for the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Xerium or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (vii) any defenses, set-set offs or counterclaims which any Borrower may allege or assert against any Beneficiary in respect of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be.
(g) Notwithstanding anything to the contrary herein or in any Credit Document, this guarantee given by any guarantor organized under Austrian law is meant to be and shall be interpreted as abstract guarantee (“abstrakter Garantievertrag”) and not as surety (“Buergschaft”), neither as a joint obligation as a borrower (“Mitschuldner”) and such Austrian Guarantor undertakes to pay unconditionally, irrevocably, upon first demand and without raising any defenses (“unbedingt, unwiderruflich, ueber erste Aufforderung und unter Verzicht auf alle Einwendungen”) any amounts demanded by any of the Beneficiaries under reference to this guarantee.
(h) Notwithstanding anything to the contrary herein or in any Credit Document, to the extent that this guarantee is granted by any guarantor organized under German law, such guarantee is granted in the form of an abstract guarantee (abstraktes Garantieversprechen) and not as a surety (Buergschaft) or as a joint obligation as borrower (Mitschuldübernahme), and any German Guarantor undertakes, subject to subsection 7.14(f) hereof, to pay unconditionally, irrevocably, upon first demand and without raising any defenses (unbedingt, unwiderruflich, auf erstes Anfordern und unter Verzicht auf alle Einwendungen) any amounts demanded by any of the Beneficiaries under reference to this guarantee.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Xerium Technologies Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Second Lien Credit and Guaranty Agreement (X Rite Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Any Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral any Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Loan Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Loan Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence and during the continuance of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's covenant CREDIT AND GUAR▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇ver 7A 75 to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or CREDIT AND GUAR▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇-▇▇▇ ▇▇▇▇ ▇▇▇ver 7A 76 unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Belden & Blake Corp /Oh/)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This 11.4.1. this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral 11.4.2. Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The 11.4.3. the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor US-DOCS\135051485.13 whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions.;
(d) Payment 11.4.4. payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any 11.4.5. any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedging Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Obligor or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Loan Documents or any Hedging Agreements; and
(f) This 11.4.6. this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsLoan Documents or any Hedging Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Loan Documents, any Financing Document, of the Hedging Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Loan Document, such Hedging Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents or any of the Hedging Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Subsidiaries and to any corresponding US-DOCS\135051485.13 restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Term Loan and Security Agreement (DXP Enterprises Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence and during the continuance of an Event of Default, Default notwithstanding the existence of any dispute between Borrower the Company and any Beneficiary with respect to the existence and continuance of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower the Company or any of such other guarantors and whether or not Borrower the Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement or Banking Services Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower the Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents., the Hedge Agreements or the Banking Services Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or an agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents, the Hedge Agreements or Banking Services Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Documentof the Hedge Agreements, Banking Services Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement, such Banking Services Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or Banking Services Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower the Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Douglas Dynamics, Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which that constitutes a legal or equitable discharge of a guarantor or surety other than payment Payment in full Full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which that has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Secured Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Credit Party or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or any Secured Hedge Agreement; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment Payment in full Full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or any Secured Hedge Agreement, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing DocumentSecured Hedge Agreement, or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Secured Hedge Agreement, or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any Secured Hedge Agreement or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which that secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower that Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which that may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability and this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon during the occurrence continuation of an Event of Default, Default notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriateappropriate under the relevant Credit Document , Secured Hedge Agreement or Secured Treasury Services Agreement, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Secured Hedge Agreement or Secured Treasury Services Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Credit Party or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents., any Secured Hedge Agreements or any Secured Treasury Services Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Obligations)Guaranteed Obligations (other than contingent indemnification obligations for which no claim has been made, Obligations under or in respect of Secured Hedge Agreements and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments Secured Treasury Services Agreements and the cancellation or expiration or cash collateralization of all Letters of CreditCredit in an amount equal to 103% of Letter of Credit Usage at such time on terms reasonably satisfactory to the Issuing Bank)), including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents, any Secured Hedge Agreements, any Secured Treasury Services Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Documentof the Secured Hedge Agreements, any of the Secured Treasury Services Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Secured Hedge Agreement, such Secured Treasury Services Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents Credit Documents, any of the Secured Hedge Agreements, any of the Secured Treasury Services Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Restricted Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations. Anything contained in this Agreement to the contrary notwithstanding, the obligations of each Guarantor under this Agreement shall be limited to an aggregate amount equal to the largest amount that would not render its obligations under this Agreement subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any similar federal or state law.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Cypress Semiconductor Corp /De/)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, 125 CREDIT AND GUARANTY AGREEMENT 434546.21-New York Server 3A - MSW affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to 126 CREDIT AND GUARANTY AGREEMENT 434546.21-New York Server 3A - MSW such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Mariner Health Care Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full in cash of the Guarantied ObligationsGuaranteed Obligations (other than contingent indemnification obligations not yet due or owing). In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability;
(b) Collateral Agent this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(c) the Lender may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower the Borrowers and any Beneficiary the Lender with respect to the existence of such Event of Default.;
(cd) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Borrowers and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrowers, and a separate action or actions may be brought and prosecuted against such Guarantor to enforce this Guaranty whether or not any action is brought against Borrower the Borrowers or any of such other guarantors and whether or not Borrower is the Borrowers are joined in any such action or actions.;
(de) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paidpaid when due. Without limiting the generality of the foregoing, if Collateral Agent the Lender is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(ef) Any Beneficiarythe Lender, upon such terms as it deems appropriate, without notice or demand (except to the extent notice is required to be provided hereunder, in any other Loan Document or under Applicable Law) and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Obligations, Guaranteed Obligations in accordance with the terms of the Loan Documents; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties guarantees of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties guarantees of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Lender in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary the Lender may have against any such security, in each case as such Beneficiary the Lender in its reasonable discretion may determine consistent herewith or with the applicable Financing Document, the Intercreditor Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonablereasonable (but so long as such sale is in accordance with Applicable Law), and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower the Borrowers or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Loan Documents.; and
(fg) This this Guaranty and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full in cash of the Guarantied ObligationsGuaranteed Obligations (other than contingent indemnification obligations not yet due or owing) or unless the obligations of the Guarantors are reduced or terminated by the Lender in accordance with the terms of this Agreement), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Loan Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary the Lender might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's the Lender’s consent to the change, reorganization or termination of the corporate or other structure or existence of the Parent Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower the Borrowers may allege or assert against any Beneficiary the Lender in respect of the Guarantied Guaranteed Obligations (other than a defense based on payment of the Guaranteed Obligations), including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Delayed Draw Term Loan Credit and Guaranty Agreement (Varex Imaging Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied ObligationsGuaranteed Obligations in Cash. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between the applicable Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of the applicable Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing Documentsapplicable Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the applicable Borrower or any of such other guarantors and whether or not the applicable Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent 100 satisfied by such GuarantorGuarantor in Cash, limit, affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the applicable Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than the indefeasible payment in full of the Guarantied ObligationsGuaranteed Obligations in Cash), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents 101 or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs setoffs or counterclaims which the applicable Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each To the extent permitted by applicable Law, each Guarantor agrees that its -------------------------------- obligations Obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied ObligationsU.S. Guaranteed Obligations (other than (i) contingent indemnification obligations as to which no claim has been asserted, (ii) Guaranteed Obligations under Secured Hedge Agreements and Secured Cash Management Agreements and (iii) the Outstanding Amount of L/C Obligations related to any Letter of Credit that has been Cash Collateralized, backstopped by a letter of credit reasonably satisfactory to the applicable L/C Issuer or deemed reissued under another agreement reasonably acceptable to the applicable L/C Issuer). In furtherance of the foregoing and without limiting the generality thereof, to the extent permitted by applicable Law, each Guarantor agrees as follows:
(a) This Guaranty this Agreement is a guaranty of payment when due and not of collectibility.collectability. This Agreement is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Agent may enforce this Guaranty upon the occurrence of an Event of Default, notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.[reserved];
(c) The obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing Documents, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions.
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(ed) Any Beneficiaryany Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may may, subject to compliance with the provisions of Section 3.02 and similar provisions governing amendments and waivers in any other Credit Document, (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Secured Party in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary Secured Party may have against any such security, in each case as such Beneficiary Secured Party in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Secured Hedge Agreement or Secured Cash Management Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or any Secured Hedge Agreements or Secured Cash Management Agreements; and
(fe) This Guaranty this Agreement and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied ObligationsGuaranteed Obligations (other than (i) contingent indemnification obligations as to which no claim has been asserted, (ii) Guaranteed Obligations under Secured Hedge Agreements and Secured Cash Management Agreements and (iii) the Outstanding Amount of L/C Obligations related to any Letter of Credit that has been Cash Collateralized, backstopped by a letter of credit reasonably satisfactory to the applicable L/C Issuer or deemed reissued under another agreement reasonably acceptable to the applicable L/C Issuer)), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or any Secured Hedge Agreements or Secured Cash Management Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Secured Hedge Agreements or Secured Cash Management Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Secured Hedge Agreement or Secured Cash Management Agreement or any agreement relating to such other guaranty or securitysecurity (provided, that except as expressly provided therein, no Credit Document to which any Guarantor is a party may be amended or otherwise modified without the consent of such Guarantor); (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Secured Hedge Agreements or Secured Cash Management Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary Secured Party might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's Secured Party’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holdings or any of its Restricted Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which any Borrower may allege or assert against any Beneficiary Secured Party in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, joint and several, independent and unconditional irrespective of the value, genuineness, validity, regularity or enforceability of the Guaranteed Obligations and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment and performance in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower and any Beneficiary of the Beneficiaries with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any Beneficiaryany of the Beneficiaries, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial non-judicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Loan Documents., the Secured Treasury Management Agreement or the Master Agreement or other documentation for the Secured Hedging Obligation; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law Law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, the Secured Treasury Management Agreement or the Master Agreement or other documentation for the Secured Hedging Obligation, at lawLaw, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events Events of defaultDefault) hereof, any of any Financing Documentthe other Loan Documents, the Secured Treasury Management Agreement, the Master Agreement or other documentation for the Secured Hedging Obligation or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof, such Loan Document, such Secured Treasury Management Agreement, such Master Agreement or such other documentation for the Secured Hedging Obligation or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents and its Secured Treasury Management Agreement or Master Agreement or other documentation for the Secured Hedging Obligation or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Parent or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs setoffs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Guaranty (Fusion Telecommunications International Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that that, to the maximum extent permitted by applicable law, its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor Guarantor or surety other than payment Payment in full Full of the Guarantied applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees agrees, to the maximum extent permitted by applicable law, as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability;
(b) Collateral this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(c) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between any Borrower and any Beneficiary Guaranteed Party with respect to the existence of such Event of Default.;
(cd) The the obligations of each Guarantor hereunder are independent of the obligations of each Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing Documentseach Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower or any of such other guarantors and whether or not such Borrower is joined in any such action or actions.;
(de) Payment payment by any Guarantor of a portion, but not all, of the Guarantied applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied applicable Guaranteed Obligations.;
(ef) Any Beneficiaryany Guaranteed Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Guaranteed Party in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary Guaranteed Party may have against any such security, in each case as such Beneficiary Guaranteed Party in its discretion may determine consistent with herewith, the applicable Financing DocumentHedge Agreement, the Intercreditor Agreement Cash Management Agreements or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; and
(fg) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment Payment in full Full of the Guarantied applicable Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events Events of defaultDefault) hereof, any of the other Loan Documents, Hedge Agreements, any Financing Document, Cash Management Agreements or any Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Loan Document, such Hedge Agreement, such Cash Management Agreements, such Treasury Transaction or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respectrespect (other than with respect to defense of payment or performance in full); (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral Collateral for indebtedness Indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness Indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary Guaranteed Party might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's Guaranteed Party’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Subsidiaries Group Member and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defensesdefenses (other than defense of payment or performance in full), set-offs or counterclaims which any Borrower may allege or assert against any Beneficiary Guaranteed Party in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thingact, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit Agreement (PVH Corp. /De/)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability; this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Issuer and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Issuer and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsIssuer, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Topco or any of such other guarantors and whether or not Borrower Issuer is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without ; provided that, without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Issuer or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Note Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law Law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Note Documents, at lawor the Transaction Documents, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Note Documents, any Financing Document, of the other Transaction Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Note Document, such other Transaction Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Note Documents, the other Transaction Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower the Issuer or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which Borrower Issuer may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations. Notwithstanding any other provision of this Section 7, the guarantee contained in this Section 7 does not apply to any liability of any UK Guarantor to the extent it would result in this guarantee constituting unlawful financial assistance within the meaning of section 678 or 679 of the UK Companies Act of 2006.
Appears in 1 contract
Sources: Senior Secured Note Purchase Agreement (Vahanna Tech Edge Acquisition I Corp.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.
collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety; (b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence and during the continuance of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.
; (c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.
; (d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.
; (e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed -162- 105376510 Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith, the applicable Financing DocumentPermitted Hedge Agreement, the Intercreditor applicable Permitted Letter of Credit or the applicable Permitted Cash Management Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents.
, the Permitted Hedge Agreements, the Permitted Letters of Credit or the Permitted Cash Management Agreements; and (f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents, the Permitted Hedge Agreements, any of the Permitted Letters of Credit, or the Permitted Cash Management Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Documentof the Permitted Hedge Agreements, any of the Permitted Letters of Credit, any of the Permitted Cash Management Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms hereof or such Credit Document, such Permitted Hedge Agreement, such Permitted Letter of any Financing Document Credit, such Permitted Cash Management Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents Credit Documents, any of the Permitted Hedge Agreements, any of the Permitted Letters of Credit, any of the Permitted Cash Management Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness Indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness Indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holding or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guarantied Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Obligations.-163- 105376510
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This Guaranty is a guaranty of payment when due and not of collectibilitycollectability.
(b) Collateral Agent may enforce this Guaranty upon the occurrence of an Event of Default, notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.
(c) The obligations of each Guarantor hereunder are independent of the obligations of Borrower the other Loan Parties hereunder, the Loan Parties under the Financing Documents other Loan Documents, the Specified Hedging Agreements and the Specified Cash Management Agreements and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower the Loan Parties under the Financing other Loan Documents, the Specified Hedging Agreements and the Specified Cash Management Agreements, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower the applicable Loan Party or any of such other guarantors and whether or not Borrower the applicable Loan Party is joined in any such action or actions.
(dc) Payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.
(ed) Any BeneficiarySecured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of principal or interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Secured Party in respect of this Guaranty or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary Secured Party may have against any such security, in each case as such Beneficiary Secured Party in its discretion may determine consistent with the applicable Financing DocumentLoan Documents, the Intercreditor applicable Specified Hedging Agreement or the applicable Specified Cash Management Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any Loan Party or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Loan Documents, the Specified Hedging Agreements or the Specified Cash Management Agreements.
(fe) This Guaranty and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce enforce, or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, the Specified Hedging Agreements, the Specified Cash Management Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to or departure from, any of the terms or provisions (including without limitation provisions relating to events of default) of any Financing Documentof the Loan Documents, any of the Specified Hedging Agreements, any of the Specified Cash Management Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of such Loan Document, such Specified Hedging Agreement, such Specified Cash Management Agreements or any Financing Document agreement or instrument executed pursuant thereto or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary Secured Party might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's Secured Party’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower any Loan Party or any of its their respective Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower any Loan Party may allege or assert against any Beneficiary Secured Party in respect of the Guarantied ObligationsGuaranteed Obligations (other than, subject to Section 2.13(c), the full payment in cash thereof), including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, A&R FIRST LIEN CREDIT AND GUARANTY AGREEMENT any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any A&R FIRST LIEN CREDIT AND GUARANTY AGREEMENT manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (American Reprographics CO)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of such Guarantor and not merely a contract of surety;
(b) Collateral subject to the five (5) Business Day notice requirement in Section 8.1, the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each such Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations, provided, however, that no Credit Document to which such Guarantor is party may be amended without its written consent; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Obligations Guaranteed Obligations, and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial non-judicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents.; and
(f) This this Guaranty and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Credit Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Credit Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Obligations, Guaranteed Obligations or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of the Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which the Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; (viii) any law or regulation of any jurisdiction or any other event affecting any term of the Guaranteed Obligations and (viiiix) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Xerium Technologies Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or thereto, or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) direct Administrative Agent to enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Agreement Hedging Contract and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Transaction Documents or the Hedging Contracts; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsTransactions Documents or the Hedging Contracts, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Transactions Documents, any Financing Document, of the Hedging Contracts or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Transaction Document, such Hedging Contract or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Transaction Documents or any of the Hedging Contracts or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Foothills Resources Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that that, to the maximum extent permitted by applicable law, its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:that, to the maximum extent permitted by applicable law,
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.;
(b) Collateral Agent may enforce this Guaranty upon the occurrence of an Event of Default, notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.
(c) The obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such 103 110 Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(dc) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor's liability for any portion of the Guarantied Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's covenant to pay a portion of the Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guarantied Obligations.;
(ed) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Obligations and take and hold security for the payment of this Guaranty or the Guarantied Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Obligations, any other guaranties of the Guarantied Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty or the Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with this Agreement or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements;
(fe) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to 104 111 departure from, any of the terms or provisions (including without limitation provisions relating to events of default) of this Agreement, any Financing Documentof the other Credit Documents, any of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Obligations, in each case whether or not in accordance with the terms of any Financing Document this Agreement or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Obligations) to the payment of indebtedness other than the Guarantied Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Obligations.;
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied ObligationsGuaranteed Obligations in Cash. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such GuarantorGuarantor in Cash, limit, affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than the indefeasible payment in full of the Guarantied ObligationsGuaranteed Obligations in Cash), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which the Borrower or any Guarantor may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full in cash of the Guarantied ObligationsGuaranteed Obligations (other than contingent indemnification obligations not yet due or owing). In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability;
(b) Collateral this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(c) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower the Borrowers and any Beneficiary with respect to the existence of such Event of Default.;
(cd) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Borrowers and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrowers, and a separate action or actions may be brought and prosecuted against such Guarantor to enforce this Guaranty whether or not any action is brought against Borrower the Borrowers or any of such other guarantors and whether or not Borrower is the Borrowers are joined in any such action or actions.;
(de) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paidpaid when due. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(ef) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand (except to the extent notice is required to be provided hereunder, in any other Loan Document or under Applicable Law) and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Obligations, Guaranteed Obligations in accordance with the terms of the Loan Documents; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties guarantees of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties guarantees of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its reasonable discretion may determine consistent herewith or with the applicable Financing DocumentSecured Hedge Agreement, the Intercreditor Agreement and any applicable Bank Product Document or security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonablereasonable (but so long as such sale is in accordance with Applicable Law), and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower the Borrowers or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Loan Documents., the Secured Hedge Agreements or Bank Product Documents; and
(fg) This this Guaranty and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full in cash of the Guarantied ObligationsGuaranteed Obligations (other than contingent indemnification obligations not yet due or owing) or unless the obligations of the Guarantors are reduced or terminated by the Administrative Agent and applicable Beneficiaries in accordance with the terms of this Agreement), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, the Secured Hedge Agreements or the Bank Product Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Loan Documents, any Financing Documentof the Secured Hedge Agreements, any of the Bank Product Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Loan Document, such Secured Hedge Agreement, such Bank Product Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents, any of the Secured Hedge Agreements or any of the Bank Product Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of the Parent Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower the Borrowers may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations (other than a defense based on payment of the Guaranteed Obligations), including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Varex Imaging Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder under this Section 7 are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which that constitutes a legal or equitable discharge of a guarantor or surety other than payment in full in Cash of the Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This Guaranty its Obligations Guarantee is a guaranty guarantee of payment when due and not of collectibility.collectability and is a primary obligation of such Guarantor and not merely a contract of surety;
(b) Collateral the Administrative Agent may enforce this Guaranty its Obligations Guarantee upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary Secured Party with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations or of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsObligations, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower the Borrower, any other Guarantor or any of such other guarantors Person and whether or not Borrower the Borrower, any other Guarantor or any other Person is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Obligations which that has not been paid. Without paid (and, without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Obligations.);
(e) Any Beneficiaryany Secured Party may, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty the Obligations Guarantees or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunderunder this Section 7, at any time and from time to time may (i) renew, extend, accelerate, increase the rate of interest on, on or otherwise change the time, place, manner or terms of payment of the Guarantied Obligations, (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Obligations or any agreement relating thereto thereto, and/or subordinate the payment of the same to the payment of any other obligations; , (iii) request and accept other guaranties guarantees of the Guarantied Obligations and take and hold security for the payment of this Guaranty or the Guarantied Obligations; , (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Obligations, any other guaranties guarantees of the Guarantied Obligations, Obligations or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Obligations; , (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Secured Party in respect of this Guaranty or the Guarantied Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary Secured Party may have against any such security, in each case as such Beneficiary Secured Party in its discretion may determine consistent herewith or with the applicable Financing Document, the Intercreditor Specified Hedge Agreement or Specified Cash Management Services Agreement and any applicable security agreement, including foreclosure on any such security or exercise of a power of sale pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Credit Party or any security for the Guarantied Obligations; , and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or any Specified Hedge Agreements or Specified Cash Management Services Agreements; and
(f) This Guaranty the Obligations Guarantees and the obligations of the Guarantors hereunder thereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Creditreason, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: them (in any case other than payment in full in Cash of the Obligations or release of a Guarantor Subsidiary’s Obligations Guarantee in accordance with Section 9.8(d)(ii)): (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or any Specified Hedge Agreements or Specified Cash Management Services Agreements, at law, in equity or otherwise) with respect to the Guarantied Obligations or any agreement relating thereto, or with respect to any other guaranty guarantee of or security for the payment of the Guarantied Obligations; , (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) of any Financing Credit Document, any Specified Hedge Agreement or any Specified Cash Management Services Agreement or any agreement or instrument executed pursuant thereto, or of any other guaranty guarantee or security for the Guarantied Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Specified Hedge Agreement or such Specified Cash Management Services Agreement or any agreement relating to such other guaranty guarantee or security; , (iii) the Guarantied Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; , (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any Specified Hedge Agreement or Specified Cash Management Services Agreement under which any Obligations arose or from the proceeds of any security for the Guarantied Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Obligations) to the payment of indebtedness obligations other than the Guarantied Obligations, even though any Beneficiary might Secured Party could have elected to apply such payment to all or any part or all of the Guarantied Obligations; , (v) any Beneficiary's Secured Party’s consent to the change, reorganization or termination of the corporate or other structure or existence of the Borrower or any of its Subsidiaries Subsidiary and to any corresponding restructuring of the Guarantied Obligations; , (vi) any failure to perfect or continue perfection of a security interest in any collateral which that secures any of the Guarantied Obligations; , (vii) any defenses, set-offs or counterclaims which that the Borrower or any other Person may allege or assert against any Beneficiary Secured Party in respect of the Guarantied Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; , and (viii) any other act or thing or omission, or delay to do any other act or thing, which that may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may to the maximum extent permitted by law (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not not, to the maximum extent permitted by law, be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Xo Communications Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor Guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(ai) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of Guarantor and not merely a contract of surety;
(bii) Collateral Agent may enforce this Guaranty upon the occurrence of an Event of Default, a Default notwithstanding the existence of any dispute between Borrower and any Beneficiary Agent or any Lender with respect to the existence of such Event of Default.;
(ciii) The the obligations of each a Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents and the obligations of any each other guarantor Obligor (including any other Guarantor) Credit Party, as a Borrower or otherwise), of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such any Guarantor whether or not any action is brought against Borrower or any of such other guarantors Obligors and whether or not Borrower is joined in any such action or actions.;
(div) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(ev) Any BeneficiaryAgent or any Lender, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i1) renew, extend, accelerate, increase the rate of interest on, subject to the restrictions of Items 6 and/or 7 of the Schedule or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii2) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii3) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment hereof of this Guaranty or the Guarantied Guaranteed Obligations; (iv4) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v5) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Agent or any Lender in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary Agent or any Lender may have against any such security, in each case as such Beneficiary Agent or any Lender in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower or any security for the Guarantied Guaranteed Obligations; and (vi6) exercise any other rights available to it under the Financing Loan Documents.; and
(fvi) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i1) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii2) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Loan Document, or any agreement relating to such other guaranty or security; (iii3) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv4) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness Indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness Indebtedness other than the Guarantied Guaranteed Obligations, even though Agent or any Beneficiary Lender might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v5) Agent or any Beneficiary's Lender’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi6) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii7) any defenses, set-offs or counterclaims which Borrower may allege or assert against Agent or any Beneficiary Lender in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) 8) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or thereto, or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Agreement Hedging Contract and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedging Contracts; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedging Contracts, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedging Contracts or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedging Contract or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedging Contracts or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that that, to the maximum extent permitted by applicable law, its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor Guarantor or surety other than payment Payment in full Full of the Guarantied applicable Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees agrees, to the maximum extent permitted by applicable law, as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability; US-DOCS\106883637.15
(b) Collateral this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(c) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between any Borrower and any Beneficiary Guaranteed Party with respect to the existence of such Event of Default.;
(cd) The the obligations of each Guarantor hereunder are independent of the obligations of each Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing Documentseach Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against such Borrower or any of such other guarantors and whether or not such Borrower is joined in any such action or actions.;
(de) Payment payment by any Guarantor of a portion, but not all, of the Guarantied applicable Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied applicable Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied applicable Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied applicable Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied applicable Guaranteed Obligations.;
(ef) Any Beneficiaryany Guaranteed Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Guaranteed Party in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary Guaranteed Party may have against any such security, in each case as such Beneficiary Guaranteed Party in its discretion may determine consistent with herewith, the applicable Financing DocumentHedge Agreement, the Intercreditor Agreement Cash Management Agreements or Treasury Transaction and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guarantied Guaranteed US-DOCS\106883637.15 Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Loan Documents or any Hedge Agreements, Cash Management Agreements or Treasury Transactions; and
(fg) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment Payment in full Full of the Guarantied applicable Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events Events of defaultDefault) hereof, any of the other Loan Documents, Hedge Agreements, any Financing Document, Cash Management Agreements or any Treasury Transactions or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Loan Document, such Hedge Agreement, such Cash Management Agreements, such Treasury Transaction or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respectrespect (other than with respect to defense of payment or performance in full); (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents Loan Documents, any Hedge Agreements, any Cash Management Agreements or any Treasury Transactions or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral Collateral for indebtedness Indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness Indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary Guaranteed Party might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's Guaranteed Party’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Subsidiaries Group Member and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defensesdefenses (other than defense of payment or performance in full), set-offs set‑offs or counterclaims which any Borrower may allege or assert against any Beneficiary Guaranteed Party in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thingact, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Agent may enforce this Guaranty upon the occurrence and during the continuance of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary Lender with respect to the existence of such Event of Default.;
(c) The obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is or such other guarantors are joined in any such action or actions.;
(d) Payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any BeneficiaryAgent, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request. performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Agent or any Lender in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that Agent or such Beneficiary Lender may have against any such security, in each case as such Beneficiary Agent in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Loan Documents.; and
(f) This Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Loan Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary Lender might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's Lender’s [***] Confidential information has been omitted and filed separately with the Securities and Exchange Commission pursuant to a confidential treatment request. consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower the Parent or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which the Borrower may allege or assert against any Beneficiary Lender in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Loan, Guaranty and Security Agreement (Trident Microsystems Inc)
Liability of Guarantors Absolute. Each To the extent permitted by applicable law, each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied ObligationsGuaranteed Obligations (other than (x) obligations under Hedge Agreements not yet due and payable, and (y) contingent indemnification obligations not yet accrued and payable). In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees agrees, to the extent permitted by applicable law, as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral to the extent permitted by applicable law, Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or any Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied ObligationsGuaranteed Obligations (other than (x) obligations under Hedge Agreements not yet due and payable, and (y) contingent indemnification obligations not yet accrued and payable)), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or any Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Bright Horizons Family Solutions Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees agrees, to the extent permitted by applicable law, as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest onon or principal amount of the Guaranteed Obligations resulting from the extension of additional credit to any Credit Party or any of their Subsidiaries or otherwise, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent accordance with the Credit Documents or the applicable Financing Document, the Intercreditor Interest Rate Agreement and Currency Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair impair, reduce, release, extinguish or extinguish otherwise adversely affect any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Credit Party or any other Person or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or Interest Rate Agreements and Currency Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable (subject to applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting creditors’ rights generally and subject to general principles of equity, regardless of whether considered in a proceeding in equity or at law) and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or any Interest Rate Agreement or Currency Agreement, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Interest Rate Agreements or Currency Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Interest Rate Agreement or Currency Agreements or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Interest Rate Agreements or Currency Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower any Guarantor or any of its their respective Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral Collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usuryusury (other than payment of the Guaranteed Obligations); (viii) any failure of any Beneficiary to disclose to any Credit Party any information relating to the business, condition (financial or otherwise), operations, performance, properties or prospects of any other Credit Party now or hereafter known to such Beneficiary (each Guarantor waiving any duty on the part of the Beneficiaries to disclose such information); and (viiiix) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Aurora Diagnostics Holdings LLC)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence and during the continuance of an Event of Default, Default notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without ; and without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the herewith or any other applicable Financing Credit Document, the Intercreditor Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Documentthe other Credit Documents, or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or any such Credit Document, such agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Restricted Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Cit Group Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries or any Guarantor and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; (viii) any law, regulation, decree or order of any jurisdiction or any event affecting any term of a Guaranteed Obligation; and (viiiix) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional unconditional, constitute primary obligations of such Guarantor and not a contract of surety to the maximum extent permitted by law, and to the extent permitted by applicable law shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Agent may enforce this Guaranty upon the occurrence of an Event of Default, notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.
(c) The obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions.;
(dc) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(ed) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's liability hereunder, from time to time may may:
(i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ;
(ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; ;
(iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; ;
(iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; ;
(v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower or any security for the Guarantied Guaranteed Obligations; and and
(vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(fe) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and to the extent permitted by applicable law shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: :
(i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; ;
(ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or 107 any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; security (provided that no Credit Document to which such Guarantor is a party may be amended without its written consent);
(iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; ;
(iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; ;
(v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; ;
(vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; ;
(vii) any defenses, set-offs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and and
(viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Revolving Credit and Guaranty Agreement (Stanadyne Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower is Company or such other guarantors are joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability and this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral the Administrative Agent may enforce this Guaranty upon during the occurrence continuation of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower the Borrower, any such other guarantor or any of such other guarantors Person and whether or not Borrower the Borrower, any such other guarantor or any other Person is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such US-DOCS\155537880.27 Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriateappropriate under the relevant Loan Document, Secured Swap Agreement or Secured Cash Management Services Agreement, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the herewith or any applicable Financing Document, the Intercreditor Secured Swap Agreement or Secured Cash Management Services Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Loan Party or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Loan Documents or any Secured Swap Agreement or Secured Cash Management Services Agreement; and
(f) This this Guaranty and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Obligations), Guaranteed Obligations (other than contingent indemnification obligations for which no claim has been made and the termination Obligations in respect of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments Secured Swap Agreements or Secured Cash Management Services) and the cancellation or expiration or cash collateralization of all Letters of CreditCredit in an amount equal to 103% of Letter of Credit Usage at such time on terms satisfactory to Issuing Bank), including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, any Secured Swap Agreements, any Secured Cash Management Services Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Loan Documents, any Financing DocumentSecured Swap Agreements, any Secured Cash Management Services Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Loan Document, such Secured Swap Agreement, such Secured Cash Management Services Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents Loan Documents, any Secured Swap Agreements or any Secured Cash Management Services Agreements or from the proceeds of any US-DOCS\155537880.27 security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of the Borrower or any of its Restricted Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations, whether or not consented to by any Beneficiary; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which the Borrower or any other Person may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations. Anything contained in this Agreement to the contrary notwithstanding, the obligations of each Guarantor in respect of its Guaranty shall be limited to an aggregate amount equal to the largest amount that would not render its obligations under this Agreement subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any similar federal or state law; provided, however, that this limitation shall not apply to the Borrower with respect to its Direct Borrower Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment Payment in full Full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This Guaranty this guaranty is a guaranty of payment when due and not of collectibility.collectability. This guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Agent the Trustee may enforce this Guaranty guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower the Issuer and any Beneficiary Guaranteed Party with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Issuer and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsIssuer, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower the Issuer or any of such other guarantors and whether or not Borrower the Issuer is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Agent the Trustee is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any Beneficiaryany Guaranteed Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Guaranteed Party in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary Guaranteed Party may have against any such security, in each case as such Beneficiary Guaranteed Party in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement and any applicable security agreementherewith, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Obligor or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Transaction Documents.; and
(f) This Guaranty this guaranty and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment Payment in full Full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Transaction Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events Events of defaultDefault) hereof, any of any Financing Document, or any agreement or instrument executed pursuant thereto, the other Transaction Documents or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Transaction Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Transaction Documents or any agreement or instrument executed pursuant thereto, or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary Guaranteed Party might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's Guaranteed Party’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Subsidiaries the Obligors and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs set‑offs or counterclaims which Borrower the Issuer may allege or assert against any Beneficiary Secured Party in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence occurrence, but only during the continuance, of an Event of Default, Default notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement and herewith or any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Loan Party or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Loan Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied ObligationsGuaranteed Obligations (other than contingent indemnity obligations not then due and payable), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Documentthe other Loan Documents, or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Loan Document, or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents Loan Documents, or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower General Partner, Holdings (or any Parent) or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied ObligationsGuaranteed Obligations (subject to the limitations set forth in the Security Documents); (vii) any defenses, set-offs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Subsidiary Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Subsidiary Guarantor agrees as follows:
(ai) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Subsidiary Guarantor and not merely a contract of surety;
(bii) Collateral Agent the Lender may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary the Lender with respect to the existence of such Event of Default.;
(ciii) The the obligations of each Subsidiary Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Subsidiary Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor Subsidiary Guarantor, whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.;
(div) Payment payment by any Subsidiary Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Subsidiary Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Agent the Lender is awarded a judgment in any suit brought to enforce any Subsidiary Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Subsidiary Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Subsidiary Guarantor, limit, affect, modify or abridge any other Subsidiary Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(ev) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Subsidiary Guarantor's ’s liability hereunder, from time to time may (iA) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (iiB) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iiiC) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (ivD) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Subsidiary Guarantor) with respect to the Guarantied Guaranteed Obligations; (vE) subject to the provisions of this Agreement and the other Loan Documents, enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary the Lender may have against any such security, in each case as such Beneficiary the Lender in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Subsidiary Guarantor against Borrower any other Loan Party or any security for the Guarantied Guaranteed Obligations; and (viF) exercise any other rights available to it under the Financing Loan Documents.; and
(fvi) This this Guaranty and the obligations of Subsidiary Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Subsidiary Guarantor shall have had notice or knowledge of any of them: (iA) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (iiB) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Loan Document or any agreement relating to such other guaranty or security; (iiiC) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (ivD) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary the Lender might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (vE) any Beneficiary's the Lender’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Subsidiaries Loan Party and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (viF) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (viiG) any defenses, set-set offs or counterclaims which the Borrower may allege or assert against any Beneficiary the Lender in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viiiH) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Subsidiary Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder under this Agreement are irrevocable, absolute, independent and unconditional and shall will not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied ObligationsGuaranteed Obligations (other than contingent obligations as to which no claim or demand has been made). In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder under this Agreement are independent of the obligations of Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall will in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall will not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall will not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder under this Agreement in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty Agreement or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunderunder this Agreement, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty Agreement or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter of the date of this Agreement held by or for the benefit of such Beneficiary in respect of this Guaranty Agreement or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to under one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Credit Party or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall under this Agreement will be valid and enforceable and shall will not be subject to any reduction, limitationreduction or limitation (other than as a result of payment in full of the Guaranteed Obligations), impairment, discharge or termination for any reason (other than payment in full of the Guarantied ObligationsGuaranteed Obligations (other than contingent obligations as to which no claim or demand has been made)), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) of this Agreement, any Financing Document, of the other Credit Documents or any agreement or instrument executed pursuant theretounder any other Credit Documents, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing this Agreement or such Credit Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to under the other Financing Credit Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defensesdefenses (other than the defense of payment in full of the Guaranteed Obligations), set-offs or counterclaims which Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Inovalon Holdings, Inc.)
Liability of Guarantors Absolute. (a) Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which that constitutes a legal or equitable discharge of a guarantor or surety other than payment in full in cash of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(ai) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability;
(bii) Collateral the Facility Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(ciii) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of and the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such each Guarantor whether or not any action is brought against the Borrower or any of such other guarantors Guarantors and whether or not the Borrower is joined in any such action or actions.;
(div) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which that has not been paid. Without ; and without limiting the generality of the foregoing, if Collateral the Facility Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(ev) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or any Hedging Agreements; and
(fvi) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full in cash of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or any Hedging Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedging Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedging Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedging Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of the Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest Lien in any collateral which that secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which that the Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which thing that may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
(b) This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety.
Appears in 1 contract
Sources: Credit Agreement (Home Inns & Hotels Management Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(ai) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability and this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(bii) Collateral Agent any Beneficiary may enforce this Guaranty upon during the occurrence continuation of an Event of Default, Default notwithstanding the existence of any dispute between Borrower the Company and any Beneficiary with respect to the existence of such Event of Default.;
(ciii) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower the Company, any such other guarantor or any of such other guarantors Person and whether or not Borrower the Company, any such other guarantor or any other Person is joined in any such action or actions.;
(div) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Agent is the Beneficiaries are awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(ev) Any any Beneficiary, upon such terms as it deems appropriateappropriate under the relevant Transaction Document, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Credit Party or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Transaction Documents.; and
(fvi) This this Guaranty and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied ObligationsGuaranteed Obligations (other than contingent indemnification obligations for which no claim has been made)), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Transaction Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Transaction Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Transaction Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Transaction Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower the Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations, whether or not consented to by any Beneficiary; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which Borrower the Company or any other Person may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations. Anything contained in this Agreement to the contrary notwithstanding, the obligations of each Guarantor in respect of its Guaranty shall be limited to an aggregate amount equal to the largest amount that would not render its obligations under this Agreement subject to avoidance as a fraudulent transfer or conveyance under Section 548 of the Bankruptcy Code of the United States or any comparable provisions of any similar federal or state law; provided, however, that this limitation shall not apply to the Company with respect to its Direct Company Obligations.
Appears in 1 contract
Sources: Convertible Note Purchase Agreement (Redaptive, Inc.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of such Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between any Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each such Guarantor hereunder are independent of the obligations of any Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing Documentsany Borrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against any Borrower or any of such other guarantors and whether or not any Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations., as the case may be;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, and take and hold security for the payment of this Guaranty hereof or the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, any other guaranties of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, provided, however, that no Credit Document to which such Guarantor is party may be amended without its written consent; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Agreement documentation creating Hedging Obligations and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against any Borrower or any security for the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the applicable documentation creating Hedging Obligations; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitationlimitation (subject, however, to the limitations applicable to certain Non-US Guarantors as set out in Section 7.14), impairment, discharge or termination for any reason (other than payment in full of the Guarantied Non-US Guaranteed Obligations and Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the applicable documentation creating Hedging Obligations, at law, in equity or otherwise) with respect to the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the applicable documentation creating Hedging Obligations or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such applicable documentation creating Hedging Obligations or any agreement relating to such other guaranty or security; (iii) the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the applicable documentation creating Hedging Obligations or from the proceeds of any security for the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Xerium or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be; (vii) any defenses, set-set offs or counterclaims which any Borrower may allege or assert against any Beneficiary in respect of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Non-US Guaranteed Obligations or Guaranteed Obligations, as the case may be.
(g) Notwithstanding anything to the contrary herein or in any Credit Document, this guarantee given by any guarantor organized under Austrian law is meant to be and shall be interpreted as abstract guarantee (“abstrakter Garantievertrag”) and not as surety (“Buergschaft”), neither as a joint obligation as a borrower (“Mitschuldner”) and such Austrian Guarantor undertakes to pay unconditionally, irrevocably, upon first demand and without raising any defenses (“unbedingt, unwiderruflich, ueber erste Aufforderung und unter Verzicht auf alle Einwendungen”) any amounts demanded by any of the Beneficiaries under reference to this guarantee.
(h) Notwithstanding anything to the contrary herein or in any Credit Document, to the extent that this guarantee is granted by any guarantor organized under German law, such guarantee is granted in the form of an abstract guarantee (abstraktes Garantieversprechen) and not as a surety (Buergschaft) or as a joint obligation as borrower (Mitschuldübernahme), and any German Guarantor undertakes, subject to subsection 7.14(f) hereof, to pay unconditionally, irrevocably, upon first demand and without raising any defenses (unbedingt, unwiderruflich, auf erstes Anfordern und unter Verzicht auf alle Einwendungen) any amounts demanded by any of the Beneficiaries under reference to this guarantee.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Xerium Technologies Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement or Specified Cash Management Arrangement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents., the Hedge Agreements or the Specified Cash Management Arrangements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Credit Documents, the Hedge Agreements or the Specified Cash Management Arrangements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Documentof the Hedge Agreements, any of the Specified Cash Management Arrangements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement, such Specified Cash Management Arrangement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Documents Credit Documents, any of the Hedge Agreements, or any of the Specified Cash Management Arrangements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations; [*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would likely cause competitive harm to the company if publicly disclosed.
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial non-judicial sales, whether or not every aspect of any such sale is commercially reasonable[*], and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Loan Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full in cash of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Loan Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations. [*] = Certain confidential information contained in this document, marked by brackets, has been omitted because it is both (i) not material and (ii) would likely cause competitive harm to the company if publicly disclosed.
Appears in 1 contract
Sources: Financing Agreement (Fibrogen Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied ObligationsGuaranteed Obligations (other than contingent and indemnification obligations for which no claim has been asserted). In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability;
(b) Collateral this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(c) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and the Administrative Agent or any Beneficiary Lender with respect to the existence of such Event of Default.;
(cd) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.;
(de) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without ; provided that, without limiting the generality of the foregoing, if Collateral Agent any Lender is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(ef) Any Beneficiarythe Administrative Agent, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or and subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary the Lenders in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary the Administrative Agent or any Lender may have against any such security, in each case as such Beneficiary the Administrative Agent in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one (1) or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Loan Documents.; and
(fg) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied ObligationsGuaranteed Obligations (other than contingent and indemnification obligations for which no claim has been asserted)), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Loan Documents, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Loan Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Loan Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary the Administrative Agent might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) the Administrative Agent’s or any Beneficiary's ▇▇▇▇▇▇’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower any Pledgor, any Obligor or any Subsidiary of its Subsidiaries and an Obligor to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-set offs or counterclaims which the Borrower may allege or assert against the Administrative Agent or any Beneficiary Lender in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Ipc Acquisition Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which that constitutes a legal or equitable discharge of a guarantor or surety other than payment Payment in full Full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which that has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with the applicable Financing Document, the Intercreditor Agreement herewith and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower any other Credit Party or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Credit Documents.; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment Payment in full Full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing Documents, Credit Documents at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure depart from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of any Financing Document, the other Credit Documents or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing hereof or such Credit Document or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which that secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower that Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which that may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Electra Battery Materials Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial non-judicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Loan Documents or any Hedge Agreements; and
(f) This this Guaranty and the obligations of the Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsLoan Documents or any Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Loan Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Loan Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which the Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Senior Secured Term Loan Facility Agreement (Home Loan Servicing Solutions, Ltd.)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment Payment in full Full of the Guarantied Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability;
(b) Collateral this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(c) the Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between the Borrower and any Beneficiary with respect to the existence of such Event of Default.;
(cd) The the obligations of each Guarantor hereunder are independent of the obligations of the Borrower under the Financing Documents and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsBorrower, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against the Borrower or any of such other guarantors and whether or not the Borrower is joined in any such action or actions.;
(de) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral the Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(ef) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Agreement Hedge Agreements and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against the Borrower or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Loan Documents or any Hedge Agreements; and
(fg) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment Payment in full Full of the Guarantied Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsLoan Documents or any Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Loan Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Loan Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Loan Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of the Borrower or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which the Borrower may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Covia Holdings Corp)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability; this Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary Secured Party with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any Beneficiaryany Secured Party, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary Secured Party in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary Secured Party may have against any such security, in each case as such Beneficiary Secured Party in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, 138 whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary Secured Party might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any BeneficiarySecured Party's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary Secured Party in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and to the extent permitted by applicable law shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Agent may enforce this Guaranty upon the occurrence of an Event of Default, notwithstanding the existence of any dispute between Borrower and any Beneficiary with respect to the existence of such Event of Default.
(c) The obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(dc) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(ed) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied ObligationsGuaranteed Obligations provided that no Credit Document to which such Guarantor is a party may be amended without its written consent; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(fe) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and to the extent permitted by applicable law shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Company or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Amscan Holdings Inc)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's liability hereunder in respect of the Guarantied Guaranteed Obligations.; FIRST LIEN CREDIT AND GUARANTY AGREEMENT 824323-New York Server 7A EXECUTION
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, any of the other Credit Documents, any Financing Document, of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the FIRST LIEN CREDIT AND GUARANTY AGREEMENT 824323-New York Server 7A EXECUTION payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (American Reprographics CO)
Liability of Guarantors Absolute. Each Guarantor agrees that its -------------------------------- obligations hereunder are irrevocable, absolute, independent and unconditional and shall not be affected by any circumstance which constitutes a legal or equitable discharge of a guarantor or surety other than payment in full of the Guarantied Guaranteed Obligations. In furtherance of the foregoing and without limiting the generality thereof, each Guarantor agrees as follows:
(a) This this Guaranty is a guaranty of payment when due and not of collectibility.collectability. This Guaranty is a primary obligation of each Guarantor and not merely a contract of surety;
(b) Collateral Administrative Agent may enforce this Guaranty upon the occurrence of an Event of Default, Default notwithstanding the existence of any dispute between Borrower Company and any Beneficiary with respect to the existence of such Event of Default.;
(c) The the obligations of each Guarantor hereunder are independent of the obligations of Borrower under the Financing Documents Company and the obligations of any other guarantor (including any other Guarantor) of the obligations of Borrower under the Financing DocumentsCompany, and a separate action or actions may be brought and prosecuted against such Guarantor whether or not any action is brought against Borrower Company or any of such other guarantors and whether or not Borrower Company is joined in any such action or actions.;
(d) Payment payment by any Guarantor of a portion, but not all, of the Guarantied Guaranteed Obligations shall in no way limit, affect, modify or abridge any Guarantor's ’s liability for any portion of the Guarantied Guaranteed Obligations which has not been paid. Without limiting the generality of the foregoing, if Collateral Administrative Agent is awarded a judgment in any suit brought to enforce any Guarantor's ’s covenant to pay a portion of the Guarantied Guaranteed Obligations, such judgment shall not be deemed to release such Guarantor from its covenant to pay the portion of the Guarantied Guaranteed Obligations that is not the subject of such suit, and such judgment shall not, except to the extent satisfied by such Guarantor, limit, affect, modify or abridge any other Guarantor's ’s liability hereunder in respect of the Guarantied Guaranteed Obligations.;
(e) Any any Beneficiary, upon such terms as it deems appropriate, without notice or demand and without affecting the validity or enforceability of this Guaranty hereof or giving rise to any reduction, limitation, impairment, discharge or termination of any Guarantor's ’s liability hereunder, from time to time may (i) renew, extend, accelerate, increase the rate of interest on, or otherwise change the time, place, manner or terms of payment of the Guarantied Guaranteed Obligations, ; (ii) settle, compromise, release or discharge, or accept or refuse any offer of performance with respect to, or substitutions for, the Guarantied Guaranteed Obligations or any agreement relating thereto and/or subordinate the payment of the same to the payment of any other obligations; (iii) request and accept other guaranties of the Guarantied Guaranteed Obligations and take and hold security for the payment of this Guaranty hereof or the Guarantied Guaranteed Obligations; (iv) release, surrender, exchange, substitute, compromise, settle, rescind, waive, alter, subordinate or modify, with or without consideration, any security for payment of the Guarantied Guaranteed Obligations, any other guaranties of the Guarantied Guaranteed Obligations, or any other obligation of any Person (including any other Guarantor) with respect to the Guarantied Guaranteed Obligations; (v) enforce and apply any security now or hereafter held by or for the benefit of such Beneficiary in respect of this Guaranty hereof or the Guarantied Guaranteed Obligations and direct the order or manner of sale thereof, or exercise any other right or remedy that such Beneficiary may have against any such security, in each case as such Beneficiary in its discretion may determine consistent with herewith or the applicable Financing Document, the Intercreditor Hedge Agreement and any applicable security agreement, including foreclosure on any such security pursuant to one or more judicial or nonjudicial sales, whether or not every aspect of any such sale is commercially reasonable, and even though such action operates to impair or extinguish any right of reimbursement or subrogation or other right or remedy of any Guarantor against Borrower Company or any security for the Guarantied Guaranteed Obligations; and (vi) exercise any other rights available to it under the Financing Documents.Credit Documents or the Hedge Agreements; and
(f) This this Guaranty and the obligations of Guarantors hereunder shall be valid and enforceable and shall not be subject to any reduction, limitation, impairment, discharge or termination for any reason (other than payment in full of the Guarantied Guaranteed Obligations), and the termination of the Revolving Credit Commitments, the Swing Line Commitment, the Term Loan Commitments and the cancellation or expiration of all Letters of Credit, including without limitation the occurrence of any of the following, whether or not any Guarantor shall have had notice or knowledge of any of them: (i) any failure or omission to assert or enforce or agreement or election not to assert or enforce, or the stay or enjoining, by order of court, by operation of law or otherwise, of the exercise or enforcement of, any claim or demand or any right, power or remedy (whether arising under the Financing DocumentsCredit Documents or the Hedge Agreements, at law, in equity or otherwise) with respect to the Guarantied Guaranteed Obligations or any agreement relating thereto, or with respect to any other guaranty of or security for the payment of the Guarantied Guaranteed Obligations; (ii) any rescission, waiver, amendment or modification of, or any consent to departure from, any of the terms or provisions (including without limitation provisions relating to events of default) hereof, or of any Financing Documentof the other Credit Documents, any of the Hedge Agreements or any agreement or instrument executed pursuant thereto, or of any other guaranty or security for the Guarantied Guaranteed Obligations, in each case whether or not in accordance with the terms of any Financing Document hereof or such Credit Document, such Hedge Agreement or any agreement relating to such other guaranty or security; (iii) the Guarantied Guaranteed Obligations, or any agreement relating thereto, at any time being found to be illegal, invalid or unenforceable in any respect; (iv) the application of payments received from any source (other than payments received pursuant to the other Financing Credit Documents or any of the Hedge Agreements or from the proceeds of any security for the Guarantied Guaranteed Obligations, except to the extent such security also serves as collateral for indebtedness other than the Guarantied Guaranteed Obligations) to the payment of indebtedness other than the Guarantied Guaranteed Obligations, even though any Beneficiary might have elected to apply such payment to any part or all of the Guarantied Guaranteed Obligations; (v) any Beneficiary's ’s consent to the change, reorganization or termination of the corporate or other structure or existence of Borrower Holdings or any of its Subsidiaries and to any corresponding restructuring of the Guarantied Guaranteed Obligations; (vi) any failure to perfect or continue perfection of a security interest in any collateral which secures any of the Guarantied Guaranteed Obligations; (vii) any defenses, set-offs or counterclaims which Borrower Company may allege or assert against any Beneficiary in respect of the Guarantied Guaranteed Obligations, including but not limited to failure of consideration, breach of warranty, payment, statute of frauds, statute of limitations, accord and satisfaction and usury; and (viii) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of any Guarantor as an obligor in respect of the Guarantied Guaranteed Obligations.
Appears in 1 contract
Sources: Credit and Guaranty Agreement (Services International LLC)