Unconditional Guaranty. No action which the Administrative Agent or any other Lender Party may take or omit to take in connection with any of the Obligation Documents or any of the Obligations (or any other indebtedness owing by the Borrower to the Administrative Agent or any other Lender Party), and no course of dealing of the Administrative Agent or any other Lender Party with any Obligor or any other Person, shall release or diminish any Guarantor’s obligations, liabilities, agreements or duties hereunder, affect this Guaranty in any way, or afford any Guarantor any recourse against the Administrative Agent or any other Lender Party, regardless of whether any such action or inaction may increase any risks to or liabilities of the Administrative Agent or any other Lender Party or any Obligor. Without limiting the foregoing, each Guarantor hereby expressly agrees that any Lender Party may, from time to time, without notice to or the consent of any Guarantor, do any or all of the following: Amend, change or modify, in whole or in part, any one or more of the Obligation Documents and give or refuse to give any waivers or other indulgences with respect thereto. Neglect, delay, fail, or refuse to take or prosecute any action for the collection or enforcement of any of the Obligations, to foreclose or take or prosecute any action in connection with any Obligation Document, to bring suit against any Obligor or any other Person, or to take any other action concerning the Obligations or the Obligation Documents. Accelerate, change, rearrange, extend, or renew the time, rate, terms, or manner for payment or performance of any one or more of the Obligations (whether for principal, interest, fees, expenses, indemnifications, affirmative or negative covenants, or otherwise). Compromise or settle any unpaid or unperformed Obligation or any other obligation or amount due or owing, or claimed to be due or owing, under any one or more of the Obligation Documents. Discharge, release, substitute or add Obligors. Apply all monies received from Obligors or others to any one or more of the Obligations as the Administrative Agent or the other Lender Parties may determine to be in their best interest, without in any way being required to apply all or any part of such monies upon any particular Obligations. No action or inaction of any Obligor or any other Person, and no change of law or circumstances, shall release or diminish any Guarantor’s obligations, liabilities, agreements, or duties hereunder, affect this Guaranty in any way, or afford any Guarantor any recourse against any Lender Party. Without limiting the foregoing, the obligations, liabilities, agreements, and duties of the Guarantors under this Guaranty shall not be released, diminished, impaired, reduced, or affected by the occurrence of any or all of the following from time to time, even if occurring without notice to or without the consent of any Guarantor: Any voluntary or involuntary liquidation, dissolution, sale of all or substantially all assets, marshalling of assets or liabilities, receivership, conservatorship, assignment for the benefit of creditors, insolvency, bankruptcy, reorganization, arrangement, or composition of any Obligor or any other proceedings involving any Obligor or any of the assets of any Obligor under laws for the protection of debtors, or any discharge, impairment, modification, release, or limitation of the liability of, or stay of actions or lien enforcement proceedings against, any Obligor, any properties of any Obligor, or the estate in bankruptcy of any Obligor in the course of or resulting from any such proceedings. The failure by the Administrative Agent or any other Lender Party to file or enforce a claim in any proceeding described in the immediately preceding subsection (i) or to take any other action in any proceeding to which any Obligor is a party. The release by operation of law of any Obligor from any of the Obligations or any other obligations to the Administrative Agent or any other Lender Party. The invalidity, deficiency, illegality, or unenforceability of any of the Obligations or the Obligation Documents, in whole or in part, any bar by any statute of limitations or other law of recovery on any of the Obligations, or any defense or excuse for failure to perform on account of force majeure, act of God, casualty, impossibility, impracticability, or other defense or excuse whatsoever, other than the defense of payment having been made to the Lender Parties in accordance with this Guaranty or the Term Loan Credit Agreement. The failure of any Obligor or any other Person to sign any guaranty or other instrument or agreement within the contemplation of any Obligor, the Administrative Agent or any other Lender Party. The fact that the Guarantors may have incurred directly part of the Obligations or are otherwise primarily liable therefor. Without limiting any of the foregoing, any fact or event (whether or not similar to any of the foregoing) which in the absence of this provision would or might constitute or afford a legal or equitable discharge or release of or defense to a guarantor or surety other than the actual payment by the Borrower of the Obligations or the actual payment by the Guarantors under this Guaranty. The Administrative Agent, on behalf of any Lender Party, may invoke the benefits of this Guaranty before pursuing any remedies against any Obligor or any other Person. The Administrative Agent, on behalf of any Lender Party, may maintain an action against any Guarantor on this Guaranty without joining any other Obligor therein and without bringing a separate action against any other Obligor. If any payment to any Lender Party by any Obligor is held to constitute a preference or a voidable transfer under applicable state or federal laws, or if for any other reason any Lender Party is required to refund such payment to the payor thereof or to pay the amount thereof to any other Person, such payment to such Lender Party shall not constitute a release of any Guarantor from any liability hereunder, and each Guarantor agrees to pay such amount to such Lender Party on demand and agrees and acknowledges that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, to the extent of any such payment or payments. Any transfer by subrogation which is made as contemplated in Section 6 prior to any such payment or payments shall (regardless of the terms of such transfer) be automatically voided upon the making of any such payment or payments, and all rights so transferred shall thereupon revert to and be vested in the Lender Parties. This is a continuing guaranty and shall apply to and cover all Obligations and renewals and extensions thereof and substitutions therefor from time to time.
Appears in 2 contracts
Samples: Senior Secured Term Loan C Agreement, Senior Secured Term Loan C Agreement (Energy Transfer Equity, L.P.)
Unconditional Guaranty. No action which The Guarantor hereby irrevocably and unconditionally guarantees to the Administrative Agent or any other Lender Party may take or omit Buyer, subject to take the terms and limitations contained in connection with any of the Obligation Documents or any of Purchase Agreement, the Obligations (or any other indebtedness owing due and punctual payment and performance by the Borrower to the Administrative Agent or any other Lender Party), and no course Seller of dealing of the Administrative Agent or any other Lender Party with any Obligor or any other Person, shall release or diminish any Guarantor’s obligations, liabilities, agreements or duties hereunder, affect this Guaranty in any way, or afford any Guarantor any recourse against the Administrative Agent or any other Lender Party, regardless of whether any such action or inaction may increase any risks to or liabilities of the Administrative Agent or any other Lender Party or any Obligor. Without limiting the foregoing, each Guarantor hereby expressly agrees that any Lender Party may, from time to time, without notice to or the consent of any Guarantor, do any or all of the following: AmendSeller’s obligations under the Purchase Agreement (the “Guaranteed Obligations”) provided that, change as regards any Guaranteed Obligations not involving the payment of money, to be performed 104 outside the French Republic, the Guarantor’s obligations hereunder shall be to cause such Guaranteed Obligations to be performed by the Seller or modify, another person designated by the Guarantor and not by the Guarantor itself if the Guarantor’s own performance of such Guaranteed Obligations would require it to register or qualify to do business in whole or in partsubject itself to the taxing or regulatory jurisdiction of, any one or more of other country. Subject to the Obligation Documents and give or refuse to give any waivers or other indulgences with respect thereto. Neglectaforesaid, delay, fail, or refuse to take or prosecute any action for the collection or enforcement of any of the Obligations, to foreclose or take or prosecute any action in connection with any Obligation Document, to bring suit against any Obligor or any other Person, or to take any other action concerning the Obligations or the Obligation Documents. Accelerate, change, rearrange, extend, or renew the time, rate, terms, or manner for payment or performance of any one or more of the Obligations (whether for principal, interest, fees, expenses, indemnifications, affirmative or negative covenants, or otherwise). Compromise or settle any unpaid or unperformed Obligation or any other obligation or amount due or owing, or claimed to be due or owing, under any one or more of the Obligation Documents. Discharge, release, substitute or add Obligors. Apply all monies received from Obligors or others to any one or more of the Obligations as the Administrative Agent or the other Lender Parties may determine to be in their best interest, without in any way being required to apply all or any part of such monies upon any particular Obligations. No action or inaction of any Obligor or any other Person, and no change of law or circumstances, shall release or diminish any Guarantor’s obligationsguaranty hereunder is an absolute, liabilitiesunconditional guaranty of performance and, agreementswhere applicable, or duties hereunder, affect this Guaranty in any way, or afford any Guarantor any recourse against any Lender Party. Without limiting the foregoing, the obligations, liabilities, agreements, of payment and duties of the Guarantors under this Guaranty shall not be released, diminished, impaired, reduced, discharged or otherwise affected by any matter whatsoever, including, without limitation, (i) the occurrence of any or all of the following from time to time, even if occurring without notice to or without the consent of any Guarantor: Any voluntary or involuntary liquidation, dissolution, sale of all or substantially all assets, marshalling of assets or liabilities, receivership, conservatorship, assignment for the benefit of creditorsbankruptcy, insolvency, bankruptcy, reorganization, arrangementreorganization or dissolution of the Seller or the disaffirmance in whole or in part of any of the Guaranteed Obligations in any such proceeding, or composition any action taken by any trustee or receiver or by any court in any such proceeding, (ii) any modification or amendment of or supplement to the Purchase Agreement or the Guaranteed Obligations, (iii) any consent, release or waiver by the Seller with respect to any of its rights under the Purchase Agreement, (iv) any assignment or transfer of the Purchase Agreement or of any Obligor rights or obligations thereunder in accordance with the terms thereof, (v) any merger or consolidation of the Seller into or with any other corporation, or any sale, lease or other proceedings involving any Obligor or transfer of any of the assets of any Obligor under laws for the protection of debtors, or any discharge, impairment, modification, release, or limitation of the liability of, or stay of actions or lien enforcement proceedings against, any Obligor, any properties of any Obligor, or the estate in bankruptcy of any Obligor in the course of or resulting from any such proceedings. The failure by the Administrative Agent or any other Lender Party to file or enforce a claim in any proceeding described in the immediately preceding subsection (i) or to take any other action in any proceeding to which any Obligor is a party. The release by operation of law of any Obligor from any of the Obligations or any other obligations to the Administrative Agent or any other Lender Party. The invalidity, deficiency, illegality, or unenforceability of any of the Obligations or the Obligation Documents, in whole or in part, any bar by any statute of limitations or other law of recovery on any of the Obligations, or any defense or excuse for failure to perform on account of force majeure, act of God, casualty, impossibility, impracticability, or other defense or excuse whatsoever, other than the defense of payment having been made to the Lender Parties in accordance with this Guaranty or the Term Loan Credit Agreement. The failure of any Obligor or any other Person to sign any guaranty or other instrument or agreement within the contemplation of any Obligor, the Administrative Agent or any other Lender Party. The fact that the Guarantors may have incurred directly part of the Obligations or are otherwise primarily liable therefor. Without limiting any of the foregoing, any fact or event (whether or not similar to any of the foregoing) which in the absence of this provision would or might constitute or afford a legal or equitable discharge or release of or defense to a guarantor or surety other than the actual payment by the Borrower of the Obligations or the actual payment by the Guarantors under this Guaranty. The Administrative Agent, on behalf of any Lender Party, may invoke the benefits of this Guaranty before pursuing any remedies against any Obligor or any other Person. The Administrative Agent, on behalf of any Lender Party, may maintain an action against any Guarantor on this Guaranty without joining any other Obligor therein and without bringing a separate action against any other Obligor. If any payment to any Lender Party by any Obligor is held to constitute a preference or a voidable transfer under applicable state or federal laws, or if for any other reason any Lender Party is required to refund such payment to the payor thereof or to pay the amount thereof Seller to any other Personperson or entity, such payment or (vi) any lack of authority or lack of authorization for the Seller to such Lender Party shall not constitute a release of any Guarantor from any liability hereunder, and each Guarantor agrees to pay such amount to such Lender Party on demand and agrees and acknowledges that this Guaranty shall continue to be effective or shall be reinstated, as incur the case may be, to the extent of any such payment or payments. Any transfer by subrogation which is made as contemplated in Section 6 prior to any such payment or payments shall (regardless of the terms of such transfer) be automatically voided upon the making of any such payment or payments, and all rights so transferred shall thereupon revert to and be vested in the Lender Parties. This is a continuing guaranty and shall apply to and cover all Obligations and renewals and extensions thereof and substitutions therefor from time to timeGuaranteed Obligations.
Appears in 1 contract
Samples: Letter Agreement (Flyi Inc)
Unconditional Guaranty. (a) This is an unconditional Guaranty; it is unlimited as to time, until termination. The Guarantor warrants that there are no conditions, oral or otherwise, on the effectiveness of this Guaranty. This is a continuing guaranty and shall apply to and cover all Obligations and renewals and extensions thereof and substitutions therefor from time to time. No action which the Administrative Agent or any other Lender Party may take or omit to take in connection with any of the Obligation Documents or Loan Documents, any of the Obligations (or any other indebtedness owing by the Borrower Borrowers to the Administrative Agent Lender), or any other Lender Party)Security, and no course of dealing of the Administrative Agent or any other Lender Party with any Obligor or any other Person, shall release or diminish any the Guarantor’s 's obligations, liabilities, agreements or duties hereunder, affect this Guaranty in any way, or afford any the Guarantor any recourse against the Administrative Agent or any other Lender PartyLender, regardless of whether any such action or inaction may increase any risks to or liabilities of the Administrative Agent Lender or any other Lender Party Obligor or increase any Obligorrisk to or diminish any safeguard of any Security. Without limiting the foregoing, each the Guarantor hereby expressly agrees that any Lender Party may, from time to time, without notice to or the consent of any the Guarantor, do any or all of the following: Amend(i) amend, change or modify, in whole or in part, any one or more of the Obligation other Loan Documents and give or refuse to give any waivers or other indulgences with respect thereto. Neglect; (ii) neglect, delay, fail, or refuse to take or prosecute any action for the collection or enforcement of any of the Obligations, to foreclose or take or prosecute any action in connection with any Obligation Security or Loan Document, to bring suit against any Obligor or any other Person, or to take any other action concerning the Obligations or the Obligation Loan Documents. Accelerate; (iii) accelerate, change, rearrange, extend, or renew the time, rate, terms, or manner for payment or performance of any one or more of the Obligations (whether for principal, 0000000x0 interest, fees, expenses, indemnifications, affirmative or negative covenants, or otherwise). Compromise ; (iv) compromise or settle any unpaid or unperformed Obligation or any other obligation or amount due or owing, or claimed to be due or owing, under any one or more of the Obligation Loan Documents. Discharge; (v) take, exchange, amend, eliminate, surrender, release, or subordinate any or all Security for any or all of the Obligations, accept additional or substituted Security therefor, and perfect or fail to perfect Lender’s rights in any or all Security; (vi) discharge, release, substitute or add Obligors. Apply ; (vii) apply all monies received from Obligors or others to others, or from any one or more Security for any of the Obligations Obligations, as the Administrative Agent or the other Lender Parties may determine to be in their its best interest, without in any way being required to xxxxxxxx Security or assets or to apply all or any part of such monies upon any particular Obligations. No action or inaction of any Obligor or any other Person, and no change of law or circumstances, shall release or diminish any Guarantor’s obligations, liabilities, agreements, or duties hereunder, affect this Guaranty in any way, or afford any Guarantor any recourse against any Lender Party. Without limiting the foregoing, the obligations, liabilities, agreements, and duties of the Guarantors under this Guaranty shall not be released, diminished, impaired, reduced, or affected by the occurrence of any or all of the following from time to time, even if occurring without notice to or without the consent of any Guarantor: Any voluntary or involuntary liquidation, dissolution, sale of all or substantially all assets, marshalling of assets or liabilities, receivership, conservatorship, assignment for the benefit of creditors, insolvency, bankruptcy, reorganization, arrangement, or composition of any Obligor or any other proceedings involving any Obligor or any of the assets of any Obligor under laws for the protection of debtors, or any discharge, impairment, modification, release, or limitation of the liability of, or stay of actions or lien enforcement proceedings against, any Obligor, any properties of any Obligor, or the estate in bankruptcy of any Obligor in the course of or resulting from any such proceedings. The failure by the Administrative Agent or any other Lender Party to file or enforce a claim in any proceeding described in the immediately preceding subsection (i) or to take any other action in any proceeding to which any Obligor is a party. The release by operation of law of any Obligor from any of the Obligations or any other obligations to the Administrative Agent or any other Lender Party. The invalidity, deficiency, illegality, or unenforceability of any of the Obligations or the Obligation Documents, in whole or in part, any bar by any statute of limitations or other law of recovery on any of the Obligations, or any defense or excuse for failure to perform on account of force majeure, act of God, casualty, impossibility, impracticability, or other defense or excuse whatsoever, other than the defense of payment having been made to the Lender Parties in accordance with this Guaranty or the Term Loan Credit Agreement. The failure of any Obligor or any other Person to sign any guaranty or other instrument or agreement within the contemplation of any Obligor, the Administrative Agent or any other Lender Party. The fact that the Guarantors may have incurred directly part of the Obligations or are otherwise primarily liable therefor. Without limiting any of the foregoing, any fact or event (whether or not similar to any of the foregoing) which in the absence of this provision would or might constitute or afford a legal or equitable discharge or release of or defense to a guarantor or surety other than the actual payment by the Borrower of the Obligations or the actual payment by the Guarantors under this Guaranty. The Administrative Agent, on behalf of any Lender Party, may invoke the benefits of this Guaranty before pursuing any remedies against any Obligor or any other Person. The Administrative Agent, on behalf of any Lender Party, may maintain an action against any Guarantor on this Guaranty without joining any other Obligor therein and without bringing a separate action against any other Obligor. If any payment to any Lender Party by any Obligor is held to constitute a preference or a voidable transfer under applicable state or federal laws, or if for any other reason any Lender Party is required to refund such payment to the payor thereof or to pay the amount thereof to any other Person, such payment to such Lender Party shall not constitute a release of any Guarantor from any liability hereunder, and each Guarantor agrees to pay such amount to such Lender Party on demand and agrees and acknowledges that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, to the extent of any such payment or payments. Any transfer by subrogation which is made as contemplated in Section 6 prior to any such payment or payments shall (regardless of the terms of such transfer) be automatically voided upon the making of any such payment or payments, and all rights so transferred shall thereupon revert to and be vested in the Lender Parties. This is a continuing guaranty and shall apply to and cover all Obligations and renewals and extensions thereof and substitutions therefor from time to time.;
Appears in 1 contract
Unconditional Guaranty. No action which The obligations of the Administrative Guarantor under this Guaranty are absolute and unconditional without regard to the obligations of any other Person. The obligations of the Guarantor hereunder shall not be in any way limited or effected by any circumstance whatsoever including, without limitation, (a) any act or omission of the Lenders or the Agent (or any of them) consented to in Section 2.2 hereof; (b) the failure to receive any notice, demand, presentment or protest waived in Sections 2.4 and 2.6 hereof; (c) any failure by the Borrower or any surety or guarantor or any other Lender Party may take Person to perform or omit to take comply with the Guaranteed Obligations or the terms of any instrument or agreement relating thereto; (d) any change in connection with any the name, purpose, membership units or organization of the Obligation Documents Borrower or any of the Obligations (surety or any other indebtedness owing by the Borrower to the Administrative Agent or any other Lender Party), and no course of dealing of the Administrative Agent or any other Lender Party with any Obligor guarantor or any other Person; (e) any irregularity, shall release defect or diminish unauthorized action by the Lenders or the Agent (or any Guarantor’s obligationsof them), liabilities, agreements the Borrower or duties hereunder, affect this Guaranty in any way, surety or afford any Guarantor any recourse against the Administrative Agent guarantor or any other Lender PartyPerson or any of their respective officers, regardless directors members, managers or other agents in executing and delivering any instrument or agreements relating to the Guaranteed Obligations or in carrying out or attempting to carry out the terms of whether any such action agreements; (f) any insolvency, bankruptcy, reorganization or inaction may increase similar proceeding by or against the Borrower, any risks to or liabilities of Lender, the Administrative Agent Agent, any Guarantor or any other Lender Party surety or guarantor or other Person; (g) any setoff, counterclaim, recoupment, deduction, any defense or other right which any Guarantor may have against the Lenders or the Agent (or any Obligor. Without limiting of them), the foregoing, each Guarantor hereby expressly agrees that Borrower or any Lender Party may, from time surety or guarantor or any other Person for any reason whatsoever whether related to time, without notice to the Guaranteed Obligations or the consent of otherwise; or (h) any Guarantor, do any other circumstance which might constitute a legal or all of the following: Amend, change equitable discharge or modifydefense, in whole or in part, any one of a surety or more guarantor. By signing this Guaranty, each Guarantor hereby waives all defenses of the Obligation Documents and give or refuse a surety to give any waivers or other indulgences with respect thereto. Neglect, delay, fail, or refuse to take or prosecute any action for the collection or enforcement of any of the Obligations, to foreclose or take or prosecute any action in connection with any Obligation Document, to bring suit against any Obligor or any other Person, or to take any other action concerning the Obligations or the Obligation Documents. Accelerate, change, rearrange, extend, or renew the time, rate, terms, or manner for payment or performance of any one or more of the Obligations (whether for principal, interest, fees, expenses, indemnifications, affirmative or negative covenants, which it may be entitled by statute or otherwise). Compromise or settle any unpaid or unperformed Obligation or any other obligation or amount due or owing, or claimed to be due or owing, under any one or more of the Obligation Documents. Discharge, release, substitute or add Obligors. Apply all monies received from Obligors or others to any one or more of the Obligations as the Administrative Agent or the other Lender Parties may determine to be in their best interest, without in any way being required to apply all or any part of such monies upon any particular Obligations. No action or inaction of any Obligor or any other Person, and no change of law or circumstances, shall release or diminish any Guarantor’s obligations, liabilities, agreements, or duties hereunder, affect this Guaranty in any way, or afford any Guarantor any recourse against any Lender Party. Without limiting the foregoing, the obligations, liabilities, agreements, and duties of the Guarantors under this Guaranty shall not be released, diminished, impaired, reduced, or affected by the occurrence of any or all of the following from time to time, even if occurring without notice to or without the consent of any Guarantor: Any voluntary or involuntary liquidation, dissolution, sale of all or substantially all assets, marshalling of assets or liabilities, receivership, conservatorship, assignment for the benefit of creditors, insolvency, bankruptcy, reorganization, arrangement, or composition of any Obligor or any other proceedings involving any Obligor or any of the assets of any Obligor under laws for the protection of debtors, or any discharge, impairment, modification, release, or limitation of the liability of, or stay of actions or lien enforcement proceedings against, any Obligor, any properties of any Obligor, or the estate in bankruptcy of any Obligor in the course of or resulting from any such proceedings. The failure by the Administrative Agent or any other Lender Party to file or enforce a claim in any proceeding described in the immediately preceding subsection (i) or to take any other action in any proceeding to which any Obligor is a party. The release by operation of law of any Obligor from any of the Obligations or any other obligations to the Administrative Agent or any other Lender Party. The invalidity, deficiency, illegality, or unenforceability of any of the Obligations or the Obligation Documents, in whole or in part, any bar by any statute of limitations or other law of recovery on any of the Obligations, or any defense or excuse for failure to perform on account of force majeure, act of God, casualty, impossibility, impracticability, or other defense or excuse whatsoever, other than the defense of payment having been made to the Lender Parties in accordance with this Guaranty or the Term Loan Credit Agreement. The failure of any Obligor or any other Person to sign any guaranty or other instrument or agreement within the contemplation of any Obligor, the Administrative Agent or any other Lender Party. The fact that the Guarantors may have incurred directly part of the Obligations or are otherwise primarily liable therefor. Without limiting any of the foregoing, any fact or event (whether or not similar to any of the foregoing) which in the absence of this provision would or might constitute or afford a legal or equitable discharge or release of or defense to a guarantor or surety other than the actual payment by the Borrower of the Obligations or the actual payment by the Guarantors under this Guaranty. The Administrative Agent, on behalf of any Lender Party, may invoke the benefits of this Guaranty before pursuing any remedies against any Obligor or any other Person. The Administrative Agent, on behalf of any Lender Party, may maintain an action against any Guarantor on this Guaranty without joining any other Obligor therein and without bringing a separate action against any other Obligor. If any payment to any Lender Party by any Obligor is held to constitute a preference or a voidable transfer under applicable state or federal laws, or if for any other reason any Lender Party is required to refund such payment to the payor thereof or to pay the amount thereof to any other Person, such payment to such Lender Party shall not constitute a release of any Guarantor from any liability hereunder, and each Guarantor agrees to pay such amount to such Lender Party on demand and agrees and acknowledges that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, to the extent of any such payment or payments. Any transfer by subrogation which is made as contemplated in Section 6 prior to any such payment or payments shall (regardless of the terms of such transfer) be automatically voided upon the making of any such payment or payments, and all rights so transferred shall thereupon revert to and be vested in the Lender Parties. This is a continuing guaranty and shall apply to and cover all Obligations and renewals and extensions thereof and substitutions therefor from time to time.
Appears in 1 contract
Samples: Elandia, Inc.
Unconditional Guaranty. (a) This is an unconditional Guaranty; it is unlimited as to time, until termination. The Guarantor warrants that there are no conditions, oral or otherwise, on the effectiveness of this Guaranty. This is a continuing guaranty and shall apply to and cover all Obligations and renewals and extensions thereof and substitutions therefor from time to time. No action which the Administrative Agent or any other Lender Party may take or omit to take in connection with any of the Obligation Documents or Loan Documents, any of the Obligations (or any other indebtedness owing by the Borrower Borrowers to the Administrative Agent Lender Parties), or any other Lender Party)Security, and no course of dealing of the Administrative Agent or any other Lender Party with any Obligor or any other Person, shall release or diminish any the Guarantor’s 's obligations, liabilities, agreements or duties hereunder, affect this Guaranty in any way, or afford any the Guarantor any recourse against the Administrative Agent or any other Lender PartyLender, regardless of whether any such action or inaction may increase any risks to or liabilities of the Administrative Agent or any other Lender Party or any ObligorObligor or increase any risk to or diminish any safeguard of any Security. Without limiting the foregoing, each the Guarantor hereby expressly agrees that any Lender Party the Administrative Agent and the Lenders may, from time to time, without notice to or the consent of any the Guarantor, do any or all of the following: Amend(i) amend, change or modify, in whole or in part, any one or more of the Obligation other Loan Documents and give or refuse to give any waivers or other indulgences with respect thereto. Neglect; (ii) neglect, delay, fail, or refuse to take or prosecute any action for the collection or enforcement of any of the Obligations, to foreclose or take or prosecute any action in connection with any Obligation Security or Loan Document, to bring suit against any Obligor or any other Person, or to take any other action concerning the Obligations or the Obligation Loan Documents. Accelerate; (iii) accelerate, change, rearrange, extend, or renew the time, rate, terms, or manner for payment or performance of any one or more of the Obligations (whether for principal, interest, fees, expenses, indemnifications, affirmative or negative covenants, or otherwise). Compromise ; (iv) compromise or settle any unpaid or unperformed Obligation or any other obligation or amount due or owing, or claimed to be due or owing, under any one or more of the Obligation Loan Documents. Discharge; (v) take, exchange, amend, eliminate, surrender, release, or subordinate any or all Security for any or all of the Obligations, accept additional or substituted Security therefor, and perfect or fail to perfect the Administrative Agent’s or any Lender's rights in any or all Security; (vi) discharge, release, substitute or add Obligors. Apply ; (vii) apply all monies received from Obligors or others to others, or from any one or more Security for any of the Obligations Obligations, as the Administrative Agent or the other Lender Parties Lenders may determine to be in their best interest, without in any way being required to xxxxxxxx Security or assets or to apply all or any part of such monies upon any particular Obligations. No action or inaction of any Obligor or any other Person, and no change of law or circumstances, shall release or diminish any Guarantor’s obligations, liabilities, agreements, or duties hereunder, affect this Guaranty in any way, or afford any Guarantor any recourse against any Lender Party. Without limiting the foregoing, the obligations, liabilities, agreements, and duties of the Guarantors under this Guaranty shall not be released, diminished, impaired, reduced, or affected by the occurrence of any or all of the following from time to time, even if occurring without notice to or without the consent of any Guarantor: Any voluntary or involuntary liquidation, dissolution, sale of all or substantially all assets, marshalling of assets or liabilities, receivership, conservatorship, assignment for the benefit of creditors, insolvency, bankruptcy, reorganization, arrangement, or composition of any Obligor or any other proceedings involving any Obligor or any of the assets of any Obligor under laws for the protection of debtors, or any discharge, impairment, modification, release, or limitation of the liability of, or stay of actions or lien enforcement proceedings against, any Obligor, any properties of any Obligor, or the estate in bankruptcy of any Obligor in the course of or resulting from any such proceedings. The failure by the Administrative Agent or any other Lender Party to file or enforce a claim in any proceeding described in the immediately preceding subsection (i) or to take any other action in any proceeding to which any Obligor is a party. The release by operation of law of any Obligor from any of the Obligations or any other obligations to the Administrative Agent or any other Lender Party. The invalidity, deficiency, illegality, or unenforceability of any of the Obligations or the Obligation Documents, in whole or in part, any bar by any statute of limitations or other law of recovery on any of the Obligations, or any defense or excuse for failure to perform on account of force majeure, act of God, casualty, impossibility, impracticability, or other defense or excuse whatsoever, other than the defense of payment having been made to the Lender Parties in accordance with this Guaranty or the Term Loan Credit Agreement. The failure of any Obligor or any other Person to sign any guaranty or other instrument or agreement within the contemplation of any Obligor, the Administrative Agent or any other Lender Party. The fact that the Guarantors may have incurred directly part of the Obligations or are otherwise primarily liable therefor. Without limiting any of the foregoing, any fact or event (whether or not similar to any of the foregoing) which in the absence of this provision would or might constitute or afford a legal or equitable discharge or release of or defense to a guarantor or surety other than the actual payment by the Borrower of the Obligations or the actual payment by the Guarantors under this Guaranty. The Administrative Agent, on behalf of any Lender Party, may invoke the benefits of this Guaranty before pursuing any remedies against any Obligor or any other Person. The Administrative Agent, on behalf of any Lender Party, may maintain an action against any Guarantor on this Guaranty without joining any other Obligor therein and without bringing a separate action against any other Obligor. If any payment to any Lender Party by any Obligor is held to constitute a preference or a voidable transfer under applicable state or federal laws, or if for any other reason any Lender Party is required to refund such payment to the payor thereof or to pay the amount thereof to any other Person, such payment to such Lender Party shall not constitute a release of any Guarantor from any liability hereunder, and each Guarantor agrees to pay such amount to such Lender Party on demand and agrees and acknowledges that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, to the extent of any such payment or payments. Any transfer by subrogation which is made as contemplated in Section 6 prior to any such payment or payments shall (regardless of the terms of such transfer) be automatically voided upon the making of any such payment or payments, and all rights so transferred shall thereupon revert to and be vested in the Lender Parties. This is a continuing guaranty and shall apply to and cover all Obligations and renewals and extensions thereof and substitutions therefor from time to time.;
Appears in 1 contract
Unconditional Guaranty. No action which the Administrative Agent or any other Lender Party may take or omit to take in connection with any of the Obligation Documents or Loan Documents, any of the Obligations (or any other indebtedness owing by the Borrower to the Administrative Agent Lender), or any other Lender Party)Collateral, and no course of dealing of the Administrative Agent or any other Lender Party with any Obligor or any other Person, shall will release or diminish any Guarantor’s 's obligations, liabilities, agreements or duties hereunder, affect this Guaranty Agreement in any way, or afford any Guarantor any recourse against the Administrative Agent or any other Lender PartyLender, regardless of whether any such action or inaction may increase any risks to or liabilities of the Administrative Agent Lender or any other Lender Party Obligor or increase any Obligorrisk to or diminish any safeguard of any Collateral. Without limiting the foregoing, each Guarantor of the Guarantors hereby expressly agrees that any the Lender Party may, from time to time, without notice to or the consent of any such Guarantor, do any or all of the following: Amend(a) amend, change or modify, in whole or in part, any one or more of the Obligation Loan Documents and give or refuse to give any waivers or other indulgences with respect thereto. Neglect; (b) neglect, delay, fail, or refuse to take or prosecute any action for the collection or enforcement of any of the Obligations, to foreclose or take or prosecute any action in connection with any Obligation Collateral or Loan Document, to bring suit against any Obligor or any other Person, or to take any other action concerning the Obligations or the Obligation Loan Documents. Accelerate; (c) accelerate, change, rearrange, extend, extend or renew the time, rate, terms, terms or manner for payment or performance of any one or more of the Obligations (whether for principal, interest, fees, expenses, indemnifications, affirmative or negative covenants, or otherwise). Compromise ; (d) compromise or settle any unpaid or unperformed Obligation or any other obligation or amount due or owing, or claimed to be due or owing, under any one or more of the Obligation Loan Documents. Discharge; (e) take, exchange, amend, eliminate, surrender, release, or subordinate any or all Collateral for any or all of the Obligations, accept additional or substituted Collateral therefor, and perfect or fail to perfect the Lender's rights in any or all Collateral; (f) discharge, release, substitute or add Obligors. Apply ; or (g) apply all monies received from Obligors or others to others, or from any one or more Collateral for any of the Obligations Obligations, as the Administrative Agent or the other Lender Parties may determine to be in their the Lender's best interest, without in any way being required to marsxxxx Xxxlateral or assets or to apply all or any part of such monies upon any particular Obligations. No action or inaction of any Obligor or any other Person, and no change of law or circumstances, shall will release or diminish any Guarantor’s 's obligations, liabilities, agreements, agreements or duties hereunder, affect this Guaranty Agreement in any way, or afford any Guarantor any recourse against any Lender Party. Without limiting the foregoing, the obligations, liabilities, agreements, and duties of the Guarantors under this Guaranty shall not be released, diminished, impaired, reduced, or affected by the occurrence of any or all of the following from time to time, even if occurring without notice to or without the consent of any Guarantor: Any voluntary or involuntary liquidation, dissolution, sale of all or substantially all assets, marshalling of assets or liabilities, receivership, conservatorship, assignment for the benefit of creditors, insolvency, bankruptcy, reorganization, arrangement, or composition of any Obligor or any other proceedings involving any Obligor or any of the assets of any Obligor under laws for the protection of debtors, or any discharge, impairment, modification, release, or limitation of the liability of, or stay of actions or lien enforcement proceedings against, any Obligor, any properties of any Obligor, or the estate in bankruptcy of any Obligor in the course of or resulting from any such proceedings. The failure by the Administrative Agent or any other Lender Party to file or enforce a claim in any proceeding described in the immediately preceding subsection (i) or to take any other action in any proceeding to which any Obligor is a party. The release by operation of law of any Obligor from any of the Obligations or any other obligations to the Administrative Agent or any other Lender Party. The invalidity, deficiency, illegality, or unenforceability of any of the Obligations or the Obligation Documents, in whole or in part, any bar by any statute of limitations or other law of recovery on any of the Obligations, or any defense or excuse for failure to perform on account of force majeure, act of God, casualty, impossibility, impracticability, or other defense or excuse whatsoever, other than the defense of payment having been made to the Lender Parties in accordance with this Guaranty or the Term Loan Credit Agreement. The failure of any Obligor or any other Person to sign any guaranty or other instrument or agreement within the contemplation of any Obligor, the Administrative Agent or any other Lender Party. The fact that the Guarantors may have incurred directly part of the Obligations or are otherwise primarily liable therefor. Without limiting any of the foregoing, any fact or event (whether or not similar to any of the foregoing) which in the absence of this provision would or might constitute or afford a legal or equitable discharge or release of or defense to a guarantor or surety other than the actual payment by the Borrower of the Obligations or the actual payment by the Guarantors under this Guaranty. The Administrative Agent, on behalf of any Lender Party, may invoke the benefits of this Guaranty before pursuing any remedies against any Obligor or any other Person. The Administrative Agent, on behalf of any Lender Party, may maintain an action against any Guarantor on this Guaranty without joining any other Obligor therein and without bringing a separate action against any other Obligor. If any payment to any Lender Party by any Obligor is held to constitute a preference or a voidable transfer under applicable state or federal laws, or if for any other reason any Lender Party is required to refund such payment to the payor thereof or to pay the amount thereof to any other Person, such payment to such Lender Party shall not constitute a release of any Guarantor from any liability hereunder, and each Guarantor agrees to pay such amount to such Lender Party on demand and agrees and acknowledges that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, to the extent of any such payment or payments. Any transfer by subrogation which is made as contemplated in Section 6 prior to any such payment or payments shall (regardless of the terms of such transfer) be automatically voided upon the making of any such payment or payments, and all rights so transferred shall thereupon revert to and be vested in the Lender Parties. This is a continuing guaranty and shall apply to and cover all Obligations and renewals and extensions thereof and substitutions therefor from time to timeLender.
Appears in 1 contract
Unconditional Guaranty. No action which the Administrative Agent or any other Lender Party may take or omit to take in connection with any of the Obligation Documents or any of the Obligations (or any other indebtedness owing by the Borrower to the Administrative Agent or any other Lender Party), and no course of dealing of the Administrative Agent or any other Lender Party with any Obligor or any other Person, shall release or diminish any Guarantor’s The obligations, liabilitiescovenants, agreements or and duties hereunder, affect of Guarantor under this Guaranty shall not be released or impaired in any way, or afford any Guarantor any recourse against the Administrative Agent or any other Lender Party, regardless of whether any such action or inaction may increase any risks to or liabilities of the Administrative Agent or any other Lender Party or any Obligor. Without limiting the foregoing, each Guarantor hereby expressly agrees that any Lender Party may, from time to timemanner whatsoever, without notice to or the written consent of any GuarantorKaiser, do including, but not limited to, on account of any or all of the following: Amend(a) any assignment, change endorsement or modifytransfer, in whole or in part, any one or more of the Obligation Documents and give Guaranteed Obligations; (b) any waiver by Kaiser of the performance or refuse to give observance by Buyer of any waivers of the agreements, covenants, terms or conditions contained in the Agreement; (c) any extension of the time for payment or performance of all or any portion of the Guaranteed Obligations; (d) the renewal, rearrangement, modification or amendment (whether material or otherwise) of any duty, agreement, covenant or obligation of Buyer set forth in the Agreement or any other provision of the Agreement; (e) the voluntary or involuntary liquidation, sale or other indulgences disposition of all or substantially all of the assets of Buyer or Guarantor; (f) any receivership, insolvency, bankruptcy, reorganization or other similar proceedings affecting Buyer or Guarantor or any of their assets; (g) any release, withdrawal, surrender, exchange, substitution, subordination or loss of any security or other guaranty at any time existing in connection with all or any portion of the Guaranteed Obligations, or the acceptance of additional or substitute property as security therefor; (h) the release or discharge of Buyer from the observance or performance of any agreement, covenant, term or condition contained in the Agreement; (i) any action which Kaiser may take or omit to take pursuant or with respect thereto. Neglectto the Agreement or through any course of dealing with Buyer; (j) the addition of a new guarantor or guarantors; (k) the operation of law or any other cause, whether similar or dissimilar to the foregoing; (l) any adjustment, indulgence, forbearance or compromise that may be granted or given by Kaiser to any person; (m) the failure by Kaiser to file or enforce a claim against the estate (either in administration, bankruptcy or other proceeding) of Buyer or any other person or entity; (n) the addition of a new guarantor or guarantees; (o) recovery from Buyer or any other person or entity becomes barred by any statute of limitations or is otherwise prevented; (p) any defenses, set-offs or counterclaims which may be available to Buyer or any other person or entity; (q) any impairment, modification, change, release or limitation of liability of, or stay of actions in lien enforcement proceedings against Buyer, its property, or its estate in bankruptcy resulting from the operation of any present or future provisions of the Bankruptcy Code or any other similar federal or state statute, or from the decisions of any court; (r) any neglect, delay, failomission, failure or refuse refusal of Kaiser to take or prosecute any action for the perfection of collateral or the collection or enforcement of any of the Obligations, Guaranteed Obligations or to foreclose or take or prosecute any action in connection with any Obligation Documentlien, to bring suit against any Obligor or any other Personright of security for, or to take any other action concerning the Obligations or the Obligation Documents. Accelerate, change, rearrange, extend, or renew the time, rate, terms, or manner for payment or performance of any one or more of the Obligations (whether for principal, interest, fees, expenses, indemnifications, affirmative or negative covenants, or otherwise). Compromise or settle any unpaid or unperformed Obligation or any other obligation or amount due or owing, or claimed to be due or owing, under any one or more of the Obligation Documents. Discharge, release, substitute or add Obligors. Apply all monies received from Obligors or others to any one or more of the Obligations as the Administrative Agent or the other Lender Parties may determine to be in their best interest, without in any way being required to apply all or any part of such monies upon any particular Obligations. No action or inaction of any Obligor or any other Person, and no change of law or circumstances, shall release or diminish any Guarantor’s obligations, liabilities, agreements, or duties hereunder, affect this Guaranty in any way, or afford any Guarantor any recourse against any Lender Party. Without limiting the foregoing, the obligations, liabilities, agreements, and duties of the Guarantors under this Guaranty shall not be released, diminished, impaired, reduced, or affected by the occurrence of any or all of the following from time to time, even if occurring without notice to or without the consent of any Guarantor: Any voluntary or involuntary liquidation, dissolution, sale of all or substantially all assets, marshalling of assets or liabilities, receivership, conservatorship, assignment for the benefit of creditors, insolvency, bankruptcy, reorganization, arrangement, or composition of any Obligor or any other proceedings involving any Obligor or any of the assets of Guaranteed Obligations, it being the intention hereof that Guarantor shall remain fully liable as principal on the Guaranteed Obligations, notwithstanding any Obligor under laws act, omission or thing which might, but for the protection of debtorsprovisions hereof, or any discharge, impairment, modification, release, or limitation of the liability of, or stay of actions or lien enforcement proceedings against, any Obligor, any properties of any Obligor, or the estate in bankruptcy of any Obligor in the course of or resulting from any such proceedings. The failure by the Administrative Agent or any other Lender Party to file or enforce a claim in any proceeding described in the immediately preceding subsection (i) or to take any other action in any proceeding to which any Obligor is a party. The release by operation of law of any Obligor from any of the Obligations or any other obligations to the Administrative Agent or any other Lender Party. The invalidity, deficiency, illegality, or unenforceability of any of the Obligations or the Obligation Documents, in whole or in part, any bar by any statute of limitations or other law of recovery on any of the Obligations, or any defense or excuse for failure to perform on account of force majeure, act of God, casualty, impossibility, impracticability, or other defense or excuse whatsoever, other than the defense of payment having been made to the Lender Parties in accordance with this Guaranty or the Term Loan Credit Agreement. The failure of any Obligor or any other Person to sign any guaranty or other instrument or agreement within the contemplation of any Obligor, the Administrative Agent or any other Lender Party. The fact that the Guarantors may have incurred directly part of the Obligations or are otherwise primarily liable therefor. Without limiting any of the foregoing, any fact or event (whether or not similar to any of the foregoing) which in the absence of this provision would or might constitute or afford operate as a legal or equitable discharge or release of or Guarantor; (s) any defense to a guarantor or surety other than the actual payment that may arise by the Borrower reason of the Obligations incapacity or lack of authority hereof, by Buyer or others; (t) demand, protest and notice of any other kind, including, without limiting the generality of the foregoing, notice of any action or non-action on the part of Buyer or Kaiser; (u) any defense asked upon an election of remedies by Kaiser, including, without limitation, an election to proceed by non-judicial rather than judicial foreclosure, which destroys or otherwise impairs the subrogation rights of the Guarantor or the actual right of the Guarantor to proceed against Buyer for reimbursement, or both; and (v) any duty on the part of Kaiser to disclose to the Guarantor any facts it may now or hereafter know about Buyer, regardless of whether Kaiser has reason to believe that any such facts materially increase the risk beyond which the Guarantor is obligated or whether Kaiser has a reasonable opportunity to communicate such facts to the Guarantor, it being understood and agreed that the Guarantor is fully responsible for being and keeping informed of the financial condition of Buyer and of all circumstances bearing on the risk of non-payment by or non-performance of the Guarantors Guaranteed Obligations. Guarantor further agrees that nothing contained in this Guaranty shall prevent Kaiser from suing on the Note or from exercising any rights available to it thereunder or under this Guaranty. The Administrative Agentany of the Loan Documents, on behalf and that the exercise of any Lender Party, may invoke of the benefits of this Guaranty before pursuing any remedies against any Obligor or any other Person. The Administrative Agent, on behalf of any Lender Party, may maintain an action against any Guarantor on this Guaranty without joining any other Obligor therein and without bringing a separate action against any other Obligor. If any payment to any Lender Party by any Obligor is held to constitute a preference or a voidable transfer under applicable state or federal laws, or if for any other reason any Lender Party is required to refund such payment to the payor thereof or to pay the amount thereof to any other Person, such payment to such Lender Party aforesaid rights shall not constitute a release legal or equitable discharge of Guarantor. Guarantor understands that the exercise by Kaiser of certain rights and remedies contained in the Loan Documents may affect or eliminate Guarantor's right of subrogation against Borrower and that Guarantor may therefore succeed to a partially or totally nonreimbursable liability hereunder; nevertheless, Guarantor hereby authorizes and empowers Kaiser to exercise, in its sole discretion, any rights and remedies, or any combination thereof, which may then be available, since it is the intent and purpose of Guarantor that the obligations hereunder shall be absolute, independent, and unconditional under any and all circumstances. Without limiting the generality of the foregoing, Guarantor expressly waives any and all benefits under California Civil Code sections 2809, 2810, 2819, 2845, 2849, 2850, and 2855, and California Code of Civil Procedure sections 580a, 580b, and 580d. Notwithstanding any foreclosure of the lien of any Guarantor from deed of trust or security agreement with respect to any liability hereunder, and each Guarantor agrees to pay such amount to such Lender Party on demand and agrees and acknowledges that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, to the extent all of any such payment real or payments. Any transfer personal property secured thereby, whether by subrogation which is made as contemplated in Section 6 prior to any such payment or payments shall (regardless the exercise of the terms power of such transfer) be automatically voided upon the making sale contained therein, by an action for judicial foreclosure, or by an acceptance of any such payment or paymentsa deed in lieu of foreclosure, and all rights so transferred Guarantor shall thereupon revert to and be vested in the Lender Parties. This is a continuing guaranty and shall apply to and cover all Obligations and renewals and extensions thereof and substitutions therefor from time to timeremain bound under this Guaranty.
Appears in 1 contract
Samples: Joint And (Kaiser Ventures Inc)
Unconditional Guaranty. No action which The Guarantor hereby agrees that, its obligations under this Guarantee shall be unconditional, irrespective of (a) the Administrative Agent genuineness, validity, regularity, enforceability or any other Lender Party may take or omit to take in connection with any of the Obligation Documents or any of the Obligations (or any other indebtedness owing by the Borrower to the Administrative Agent or any other Lender Party), and no course of dealing of the Administrative Agent or any other Lender Party with any Obligor or any other Person, shall release or diminish any Guarantor’s obligations, liabilities, agreements or duties hereunder, affect this Guaranty in any wayfuture amendment of, or afford any Guarantor any recourse against change in this Guaranty, the Administrative Agent or any other Lender PartyTransaction Documents, regardless of whether any such action or inaction may increase any risks to or liabilities of the Administrative Agent or any other Lender Party or any Obligor. Without limiting the foregoing, each Guarantor hereby expressly agrees that any Lender Party may, from time to time, without notice to or the consent of any Guarantor, do any or all of the following: Amend, change or modify, in whole or in part, any one or more of the Obligation Documents and give or refuse to give any waivers or other indulgences with respect thereto. Neglect, delay, fail, or refuse to take or prosecute any action for the collection or enforcement of any of the Obligations, to foreclose or take or prosecute any action in connection with any Obligation Document, to bring suit against any Obligor or any other Person, or to take any other action concerning the Obligations or the Obligation Documents. Accelerate, change, rearrange, extendany part thereof, or renew the time, rate, terms, or manner for payment or performance of any one or more of the Obligations (whether for principal, interest, fees, expenses, indemnifications, affirmative Notes or negative covenants, or otherwise). Compromise or settle any unpaid or unperformed Obligation or any other obligation or amount due or owing, or claimed to be due or owing, under any one or more of the Obligation Documents. Discharge, release, substitute or add Obligors. Apply all monies received from Obligors or others to any one or more of the Obligations as the Administrative Agent or the other Lender Parties may determine to be in their best interest, without in any way being required to apply document evidencing all or any part of such monies upon any particular the Obligations. No action or inaction , (b) the absence of any Obligor attempt to collect from the Issuer or any other Person, and no change of law or circumstances, shall release or diminish any Guarantor’s obligations, liabilities, agreements, or duties hereunder, affect this Guaranty in any way, or afford any Guarantor any recourse against any Lender Party. Without limiting the foregoing, the obligations, liabilities, agreements, and duties of the Guarantors under this Guaranty shall not be released, diminished, impaired, reduced, or affected by the occurrence of any or all of the following from time to time, even if occurring without notice to or without the consent of any Guarantor: Any voluntary or involuntary liquidation, dissolution, sale guarantor of all or substantially all assets, marshalling of assets or liabilities, receivership, conservatorship, assignment for the benefit of creditors, insolvency, bankruptcy, reorganization, arrangement, or composition of any Obligor or any other proceedings involving any Obligor or any of the assets of any Obligor under laws for the protection of debtors, or any discharge, impairment, modification, release, or limitation of the liability of, or stay of actions or lien enforcement proceedings against, any Obligor, any properties of any Obligor, or the estate in bankruptcy of any Obligor in the course of or resulting from any such proceedings. The failure by the Administrative Agent or any other Lender Party to file or enforce a claim in any proceeding described in the immediately preceding subsection (i) or to take any other action in any proceeding to which any Obligor is a party. The release by operation of law of any Obligor from any part of the Obligations or any other obligations action to enforce the Administrative same, (c) the waiver, modification, extension, amendment or consent by the Trustee, the Collateral Agent or the Noteholders with respect to any other Lender Party. The invalidity, deficiency, illegality, or unenforceability provision of any of the Obligations or the Obligation Documents, in whole or in part, any bar by any statute of limitations or other law of recovery on any of instrument evidencing the Obligations, or any defense or excuse for failure to perform on account of force majeurepart thereof, act of God, casualty, impossibility, impracticability, or other defense or excuse whatsoever, other than the defense of payment having been made to the Lender Parties in accordance with this Guaranty or the Term Loan Credit Agreement. The failure of any Obligor or any other Person to sign any guaranty agreement heretofore, now or other instrument or agreement within hereafter executed by the contemplation of any Obligor, the Administrative Agent Issuer or any other Lender Party. The fact that the Guarantors may have incurred directly guarantor of all or any part of the Obligations, and delivered to the Trustee or the Collateral Agent, (d) failure by the Trustee or the Collateral Agent to take any steps to perfect and maintain its security interest in, or to preserve its rights to, any security or collateral for the Obligations or are otherwise primarily liable therefor. Without limiting any guaranty, (e) the existence or nonexistence of any defenses which may be available to the Issuer or any other guarantor of all or any part of the Obligations, (f) the institution of any proceeding under the Bankruptcy Code, or any similar proceeding, by or against any of the foregoingIssuer or any other guarantor, or the Trustee’s election in any fact or event (whether or not similar to any such proceeding of the foregoingapplication of Section 1111(b)(2) of the Bankruptcy Code, (g) any borrowing or grant of a security interest by the Issuer, as debtor-in-possession, under Section 364 of the Bankruptcy Code (or use of cash collateral under Section 363 of the Bankruptcy Code), (h) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of the Trustee’s claim(s) for repayment of the Obligations, (i) any assignment or other transfer of the Issuer’s interest or any assumption of the Issuer’s obligations under the Notes, the Indenture or any Transaction Document or (j) any other circumstance which in the absence of this provision would or might otherwise constitute or afford a legal or equitable discharge or release defense of or defense to a guarantor or surety other than the actual payment by the Borrower of the Obligations or the actual payment by the Guarantors under this Guaranty. The Administrative Agent, on behalf of any Lender Party, may invoke the benefits of this Guaranty before pursuing any remedies against any Obligor or any other Person. The Administrative Agent, on behalf of any Lender Party, may maintain an action against any Guarantor on this Guaranty without joining any other Obligor therein and without bringing a separate action against any other Obligor. If any payment to any Lender Party by any Obligor is held to constitute a preference or a voidable transfer under applicable state or federal laws, or if for any other reason any Lender Party is required to refund such payment to the payor thereof or to pay the amount thereof to any other Person, such payment to such Lender Party shall not constitute a release of any Guarantor from any liability hereunder, and each Guarantor agrees to pay such amount to such Lender Party on demand and agrees and acknowledges that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, to the extent of any such payment or payments. Any transfer by subrogation which is made as contemplated in Section 6 prior to any such payment or payments shall (regardless of the terms of such transfer) be automatically voided upon the making of any such payment or payments, and all rights so transferred shall thereupon revert to and be vested in the Lender Parties. This is a continuing guaranty and shall apply to and cover all Obligations and renewals and extensions thereof and substitutions therefor from time to timeguarantor.
Appears in 1 contract
Samples: MBC Funding Ii Corp.
Unconditional Guaranty. No action which The obligations of the Administrative Guarantor under this Guaranty are absolute and unconditional without regard to the obligations of any other Person. The obligations of the Guarantor hereunder shall not be in any way limited or effected by any circumstance whatsoever including, without limitation, (a) any act or omission of the Lenders or the Agent (or any of them) consented to in Section 2.2 hereof; (b) the failure to receive any notice, demand, presentment or protest waived in Sections 2.4 and 2.6 hereof; (c) any failure by the Borrower or any surety or guarantor or any other Lender Party may take Person to perform or omit to take comply with the Guaranteed Obligations or the terms of any instrument or agreement relating thereto; (d) any change in connection with any the name, purpose, membership units or organization of the Obligation Documents Borrower or any of the Obligations (surety or any other indebtedness owing by the Borrower to the Administrative Agent or any other Lender Party), and no course of dealing of the Administrative Agent or any other Lender Party with any Obligor guarantor or any other Person; (e) any irregularity, shall release defect or diminish unauthorized action by the Lenders or the Agent (or any Guarantor’s obligationsof them), liabilities, agreements the Borrower or duties hereunder, affect this Guaranty in any way, surety or afford any Guarantor any recourse against the Administrative Agent guarantor or any other Lender PartyPerson or any of its respective officers, regardless directors members, managers or other agents in executing and delivering any instrument or agreements relating to the Guaranteed Obligations or in carrying out or attempting to carry out the terms of whether any such action agreements; (f) any insolvency, bankruptcy, reorganization or inaction may increase similar proceeding by or against the Borrower, any risks to or liabilities of Lender, the Administrative Agent Agent, Guarantor or any other Lender Party surety or guarantor or other Person; (g) any setoff, counterclaim, recoupment, deduction, any defense or other right which Guarantor may have against the Lenders or the Agent (or any Obligor. Without limiting of them), the foregoing, each Guarantor hereby expressly agrees that Borrower or any Lender Party may, from time surety or guarantor or any other Person for any reason whatsoever whether related to time, without notice to the Guaranteed Obligations or the consent of otherwise; or (h) any Guarantor, do any other circumstance which might constitute a legal or all of the following: Amend, change equitable discharge or modifydefense, in whole or in part, any one of a surety or more guarantor. By signing this Guaranty, Guarantor hereby waives all defenses of the Obligation Documents and give or refuse a surety to give any waivers or other indulgences with respect thereto. Neglect, delay, fail, or refuse to take or prosecute any action for the collection or enforcement of any of the Obligations, to foreclose or take or prosecute any action in connection with any Obligation Document, to bring suit against any Obligor or any other Person, or to take any other action concerning the Obligations or the Obligation Documents. Accelerate, change, rearrange, extend, or renew the time, rate, terms, or manner for payment or performance of any one or more of the Obligations (whether for principal, interest, fees, expenses, indemnifications, affirmative or negative covenants, which it may be entitled by statute or otherwise). Compromise or settle any unpaid or unperformed Obligation or any other obligation or amount due or owing, or claimed to be due or owing, under any one or more of the Obligation Documents. Discharge, release, substitute or add Obligors. Apply all monies received from Obligors or others to any one or more of the Obligations as the Administrative Agent or the other Lender Parties may determine to be in their best interest, without in any way being required to apply all or any part of such monies upon any particular Obligations. No action or inaction of any Obligor or any other Person, and no change of law or circumstances, shall release or diminish any Guarantor’s obligations, liabilities, agreements, or duties hereunder, affect this Guaranty in any way, or afford any Guarantor any recourse against any Lender Party. Without limiting the foregoing, the obligations, liabilities, agreements, and duties of the Guarantors under this Guaranty shall not be released, diminished, impaired, reduced, or affected by the occurrence of any or all of the following from time to time, even if occurring without notice to or without the consent of any Guarantor: Any voluntary or involuntary liquidation, dissolution, sale of all or substantially all assets, marshalling of assets or liabilities, receivership, conservatorship, assignment for the benefit of creditors, insolvency, bankruptcy, reorganization, arrangement, or composition of any Obligor or any other proceedings involving any Obligor or any of the assets of any Obligor under laws for the protection of debtors, or any discharge, impairment, modification, release, or limitation of the liability of, or stay of actions or lien enforcement proceedings against, any Obligor, any properties of any Obligor, or the estate in bankruptcy of any Obligor in the course of or resulting from any such proceedings. The failure by the Administrative Agent or any other Lender Party to file or enforce a claim in any proceeding described in the immediately preceding subsection (i) or to take any other action in any proceeding to which any Obligor is a party. The release by operation of law of any Obligor from any of the Obligations or any other obligations to the Administrative Agent or any other Lender Party. The invalidity, deficiency, illegality, or unenforceability of any of the Obligations or the Obligation Documents, in whole or in part, any bar by any statute of limitations or other law of recovery on any of the Obligations, or any defense or excuse for failure to perform on account of force majeure, act of God, casualty, impossibility, impracticability, or other defense or excuse whatsoever, other than the defense of payment having been made to the Lender Parties in accordance with this Guaranty or the Term Loan Credit Agreement. The failure of any Obligor or any other Person to sign any guaranty or other instrument or agreement within the contemplation of any Obligor, the Administrative Agent or any other Lender Party. The fact that the Guarantors may have incurred directly part of the Obligations or are otherwise primarily liable therefor. Without limiting any of the foregoing, any fact or event (whether or not similar to any of the foregoing) which in the absence of this provision would or might constitute or afford a legal or equitable discharge or release of or defense to a guarantor or surety other than the actual payment by the Borrower of the Obligations or the actual payment by the Guarantors under this Guaranty. The Administrative Agent, on behalf of any Lender Party, may invoke the benefits of this Guaranty before pursuing any remedies against any Obligor or any other Person. The Administrative Agent, on behalf of any Lender Party, may maintain an action against any Guarantor on this Guaranty without joining any other Obligor therein and without bringing a separate action against any other Obligor. If any payment to any Lender Party by any Obligor is held to constitute a preference or a voidable transfer under applicable state or federal laws, or if for any other reason any Lender Party is required to refund such payment to the payor thereof or to pay the amount thereof to any other Person, such payment to such Lender Party shall not constitute a release of any Guarantor from any liability hereunder, and each Guarantor agrees to pay such amount to such Lender Party on demand and agrees and acknowledges that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, to the extent of any such payment or payments. Any transfer by subrogation which is made as contemplated in Section 6 prior to any such payment or payments shall (regardless of the terms of such transfer) be automatically voided upon the making of any such payment or payments, and all rights so transferred shall thereupon revert to and be vested in the Lender Parties. This is a continuing guaranty and shall apply to and cover all Obligations and renewals and extensions thereof and substitutions therefor from time to time.
Appears in 1 contract
Samples: Elandia International Inc.
Unconditional Guaranty. No action which The obligations of the Administrative Agent Guarantor under this Guaranty are absolute and unconditional without regard to the obligations of any other Person. The obligations of the Guarantor hereunder shall not be in any way limited or effected by any circumstance whatsoever including, without limitation, (a) any act or omission of the Lender consented to in Section 2.2 hereof; (b) the failure to receive any notice, demand, presentment or protest waived in Section 2.4 hereof; (c) any failure by the Borrower or any surety or guarantor or any other Lender Party may take Person to perform or omit to take comply with the Guaranteed Obligations or the terms of any instrument or agreement relating thereto; (d) any change in connection with any the name, purpose, membership units or organization of the Obligation Documents Borrower or any of the Obligations (surety or any other indebtedness owing by the Borrower to the Administrative Agent or any other Lender Party), and no course of dealing of the Administrative Agent or any other Lender Party with any Obligor guarantor or any other Person; (e) any irregularity, shall release defect or diminish unauthorized action by the Lender, the Borrower or any Guarantor’s obligations, liabilities, agreements surety or duties hereunder, affect this Guaranty in any way, or afford any Guarantor any recourse against the Administrative Agent guarantor or any other Lender PartyPerson or any of its respective officers, regardless directors members, managers or other agents in executing and delivering any instrument or agreements relating to the Guaranteed Obligations or in carrying out or attempting to carry out the terms of whether any such action agreements; (f) any insolvency, bankruptcy, reorganization or inaction may increase any risks to similar proceeding by or liabilities of against the Administrative Agent Borrower, Lender, Guarantor or any other Lender Party surety or guarantor or other Person; (g) any setoff, counterclaim, recoupment, deduction, any defense or other right which Guarantor may have against the Lender, the Borrower or any Obligor. Without limiting surety or guarantor or any other Person for any reason whatsoever whether related to the foregoing, each Guarantor hereby expressly agrees that Guaranteed Obligations or otherwise; or (h) any Lender Party may, from time to time, without notice to other circumstance which might constitute a legal or the consent of any Guarantor, do any equitable discharge or all of the following: Amend, change or modifydefense, in whole or in part, any one of a surety or more guarantor. By signing this Guaranty, Guarantor hereby waives all defenses of the Obligation Documents and give or refuse a surety to give any waivers or other indulgences with respect thereto. Neglect, delay, fail, or refuse to take or prosecute any action for the collection or enforcement of any of the Obligations, to foreclose or take or prosecute any action in connection with any Obligation Document, to bring suit against any Obligor or any other Person, or to take any other action concerning the Obligations or the Obligation Documents. Accelerate, change, rearrange, extend, or renew the time, rate, terms, or manner for payment or performance of any one or more of the Obligations (whether for principal, interest, fees, expenses, indemnifications, affirmative or negative covenants, which it may be entitled by statute or otherwise). Compromise or settle any unpaid or unperformed Obligation or any other obligation or amount due or owing, or claimed to be due or owing, under any one or more of the Obligation Documents. Discharge, release, substitute or add Obligors. Apply all monies received from Obligors or others to any one or more of the Obligations as the Administrative Agent or the other Lender Parties may determine to be in their best interest, without in any way being required to apply all or any part of such monies upon any particular Obligations. No action or inaction of any Obligor or any other Person, and no change of law or circumstances, shall release or diminish any Guarantor’s obligations, liabilities, agreements, or duties hereunder, affect this Guaranty in any way, or afford any Guarantor any recourse against any Lender Party. Without limiting the foregoing, the obligations, liabilities, agreements, and duties of the Guarantors under this Guaranty shall not be released, diminished, impaired, reduced, or affected by the occurrence of any or all of the following from time to time, even if occurring without notice to or without the consent of any Guarantor: Any voluntary or involuntary liquidation, dissolution, sale of all or substantially all assets, marshalling of assets or liabilities, receivership, conservatorship, assignment for the benefit of creditors, insolvency, bankruptcy, reorganization, arrangement, or composition of any Obligor or any other proceedings involving any Obligor or any of the assets of any Obligor under laws for the protection of debtors, or any discharge, impairment, modification, release, or limitation of the liability of, or stay of actions or lien enforcement proceedings against, any Obligor, any properties of any Obligor, or the estate in bankruptcy of any Obligor in the course of or resulting from any such proceedings. The failure by the Administrative Agent or any other Lender Party to file or enforce a claim in any proceeding described in the immediately preceding subsection (i) or to take any other action in any proceeding to which any Obligor is a party. The release by operation of law of any Obligor from any of the Obligations or any other obligations to the Administrative Agent or any other Lender Party. The invalidity, deficiency, illegality, or unenforceability of any of the Obligations or the Obligation Documents, in whole or in part, any bar by any statute of limitations or other law of recovery on any of the Obligations, or any defense or excuse for failure to perform on account of force majeure, act of God, casualty, impossibility, impracticability, or other defense or excuse whatsoever, other than the defense of payment having been made to the Lender Parties in accordance with this Guaranty or the Term Loan Credit Agreement. The failure of any Obligor or any other Person to sign any guaranty or other instrument or agreement within the contemplation of any Obligor, the Administrative Agent or any other Lender Party. The fact that the Guarantors may have incurred directly part of the Obligations or are otherwise primarily liable therefor. Without limiting any of the foregoing, any fact or event (whether or not similar to any of the foregoing) which in the absence of this provision would or might constitute or afford a legal or equitable discharge or release of or defense to a guarantor or surety other than the actual payment by the Borrower of the Obligations or the actual payment by the Guarantors under this Guaranty. The Administrative Agent, on behalf of any Lender Party, may invoke the benefits of this Guaranty before pursuing any remedies against any Obligor or any other Person. The Administrative Agent, on behalf of any Lender Party, may maintain an action against any Guarantor on this Guaranty without joining any other Obligor therein and without bringing a separate action against any other Obligor. If any payment to any Lender Party by any Obligor is held to constitute a preference or a voidable transfer under applicable state or federal laws, or if for any other reason any Lender Party is required to refund such payment to the payor thereof or to pay the amount thereof to any other Person, such payment to such Lender Party shall not constitute a release of any Guarantor from any liability hereunder, and each Guarantor agrees to pay such amount to such Lender Party on demand and agrees and acknowledges that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, to the extent of any such payment or payments. Any transfer by subrogation which is made as contemplated in Section 6 prior to any such payment or payments shall (regardless of the terms of such transfer) be automatically voided upon the making of any such payment or payments, and all rights so transferred shall thereupon revert to and be vested in the Lender Parties. This is a continuing guaranty and shall apply to and cover all Obligations and renewals and extensions thereof and substitutions therefor from time to time.
Appears in 1 contract
Samples: Elandia International Inc.
Unconditional Guaranty. (a) This is an unconditional Guaranty; it is unlimited as to time, until termination. The Guarantor warrants that there are no conditions, oral or otherwise, on the effectiveness of this Guaranty. This is a continuing guaranty and shall apply to and cover all Obligations and renewals and extensions thereof and substitutions therefor from time to time. No action which the Administrative Agent or any other Lender Party may take or omit to take in connection with any of the Obligation Documents or Loan Documents, any of the Obligations (or any other indebtedness owing by the Borrower Borrowers to the Administrative Agent Lender), or any other Lender Party)Security, and no course of dealing of the Administrative Agent or any other Lender Party with any Obligor or any other Person, shall release or diminish any the Guarantor’s 's obligations, liabilities, agreements or duties hereunder, affect this Guaranty in any way, or afford any the Guarantor any recourse against the Administrative Agent or any other Lender PartyLender, regardless of whether any such action or inaction may increase any risks to or liabilities of the Administrative Agent Lender or any other Lender Party Obligor or increase any Obligorrisk to or diminish any safeguard of any Security. Without limiting the foregoing, each the Guarantor hereby expressly agrees that any Lender Party may, from time to time, without notice to or the consent of any the Guarantor, do any or all of the following: Amend(i) amend, change or modify, in whole or in part, any one or more of the Obligation other Loan Documents and give or refuse to give any waivers or other indulgences with respect thereto. Neglect; (ii) neglect, delay, fail, or refuse to take or prosecute any action for the collection or enforcement of any of the Obligations, to foreclose or take or prosecute any action in connection with any Obligation Security or Loan Document, to bring suit against any Obligor or any other Person, or to take any other action concerning the Obligations or the Obligation Loan Documents. Accelerate; (iii) accelerate, change, 1094129v2 rearrange, extend, or renew the time, rate, terms, or manner for payment or performance of any one or more of the Obligations (whether for principal, interest, fees, expenses, indemnifications, affirmative or negative covenants, or otherwise). Compromise ; (iv) compromise or settle any unpaid or unperformed Obligation or any other obligation or amount due or owing, or claimed to be due or owing, under any one or more of the Obligation Loan Documents. Discharge; (v) take, exchange, amend, eliminate, surrender, release, or subordinate any or all Security for any or all of the Obligations, accept additional or substituted Security therefor, and perfect or fail to perfect Lender’s rights in any or all Security; (vi) discharge, release, substitute or add Obligors. Apply ; (vii) apply all monies received from Obligors or others to others, or from any one or more Security for any of the Obligations Obligations, as the Administrative Agent or the other Lender Parties may determine to be in their its best interest, without in any way being required to xxxxxxxx Security or assets or to apply all or any part of such monies upon any particular Obligations. No action or inaction of any Obligor or any other Person, and no change of law or circumstances, shall release or diminish any Guarantor’s obligations, liabilities, agreements, or duties hereunder, affect this Guaranty in any way, or afford any Guarantor any recourse against any Lender Party. Without limiting the foregoing, the obligations, liabilities, agreements, and duties of the Guarantors under this Guaranty shall not be released, diminished, impaired, reduced, or affected by the occurrence of any or all of the following from time to time, even if occurring without notice to or without the consent of any Guarantor: Any voluntary or involuntary liquidation, dissolution, sale of all or substantially all assets, marshalling of assets or liabilities, receivership, conservatorship, assignment for the benefit of creditors, insolvency, bankruptcy, reorganization, arrangement, or composition of any Obligor or any other proceedings involving any Obligor or any of the assets of any Obligor under laws for the protection of debtors, or any discharge, impairment, modification, release, or limitation of the liability of, or stay of actions or lien enforcement proceedings against, any Obligor, any properties of any Obligor, or the estate in bankruptcy of any Obligor in the course of or resulting from any such proceedings. The failure by the Administrative Agent or any other Lender Party to file or enforce a claim in any proceeding described in the immediately preceding subsection (i) or to take any other action in any proceeding to which any Obligor is a party. The release by operation of law of any Obligor from any of the Obligations or any other obligations to the Administrative Agent or any other Lender Party. The invalidity, deficiency, illegality, or unenforceability of any of the Obligations or the Obligation Documents, in whole or in part, any bar by any statute of limitations or other law of recovery on any of the Obligations, or any defense or excuse for failure to perform on account of force majeure, act of God, casualty, impossibility, impracticability, or other defense or excuse whatsoever, other than the defense of payment having been made to the Lender Parties in accordance with this Guaranty or the Term Loan Credit Agreement. The failure of any Obligor or any other Person to sign any guaranty or other instrument or agreement within the contemplation of any Obligor, the Administrative Agent or any other Lender Party. The fact that the Guarantors may have incurred directly part of the Obligations or are otherwise primarily liable therefor. Without limiting any of the foregoing, any fact or event (whether or not similar to any of the foregoing) which in the absence of this provision would or might constitute or afford a legal or equitable discharge or release of or defense to a guarantor or surety other than the actual payment by the Borrower of the Obligations or the actual payment by the Guarantors under this Guaranty. The Administrative Agent, on behalf of any Lender Party, may invoke the benefits of this Guaranty before pursuing any remedies against any Obligor or any other Person. The Administrative Agent, on behalf of any Lender Party, may maintain an action against any Guarantor on this Guaranty without joining any other Obligor therein and without bringing a separate action against any other Obligor. If any payment to any Lender Party by any Obligor is held to constitute a preference or a voidable transfer under applicable state or federal laws, or if for any other reason any Lender Party is required to refund such payment to the payor thereof or to pay the amount thereof to any other Person, such payment to such Lender Party shall not constitute a release of any Guarantor from any liability hereunder, and each Guarantor agrees to pay such amount to such Lender Party on demand and agrees and acknowledges that this Guaranty shall continue to be effective or shall be reinstated, as the case may be, to the extent of any such payment or payments. Any transfer by subrogation which is made as contemplated in Section 6 prior to any such payment or payments shall (regardless of the terms of such transfer) be automatically voided upon the making of any such payment or payments, and all rights so transferred shall thereupon revert to and be vested in the Lender Parties. This is a continuing guaranty and shall apply to and cover all Obligations and renewals and extensions thereof and substitutions therefor from time to time.;
Appears in 1 contract
