Absolute Guaranty. To the fullest extent permitted by Applicable Law, and except as limited by the express terms hereof, the liability of the Guarantor under this Guaranty shall be absolute, unconditional and irrevocable irrespective of, and the Guarantor waives any right or defense arising out of: (i) the lack of power or authority of the Guarantor to execute and deliver this Guaranty or of HQSub to execute and deliver the Agreement; (ii) the failure of HQSub to exist as a legal entity or the consolidation or merger of HQSub with or into any other corporation or other entity, or the sale, lease or other disposition by HQSub of all or substantially all of its assets to any other business entity; (iii) any disposal, transfer, assignment or other disposition or all or any part of the direct or indirect interest of the Guarantor in HQSub; (iv) the bankruptcy, insolvency, dissolution, administration, reorganization or liquidation of HQSub, the admission in writing by HQSub of its inability to pay its debts as they mature, or its making of a general assignment for the benefit of, or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor, HQSub, as debtor, or HQSub’s trustee or receiver); (v) any failure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreement, or notice of any failure on the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy of the Guarantor against HQSub; (vii) subject to Section 2 of this Guaranty, any amendment, modification or extension of the Agreement; (viii) any assertion or claim that the automatic or other stay provided by Section 362 of the Bankruptcy Code or the equivalent legislation of any other country arising upon the voluntary or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Beneficiary to enforce any rights that the Beneficiary may have against the Guarantor; and (ix) any other circumstances whatsoever (with or without knowledge of the Beneficiary or the Guarantor) that constitutes, or might be construed to constitute, an equitable or legal discharge or defense of the Guarantor under this Guaranty, in bankruptcy or in any other instance, including all defenses of a guarantor or surety generally, other than full, final and indefeasible payment of the Guaranteed Obligations by the Guarantor and/or HQSub.
Appears in 3 contracts
Samples: Transmission Service Agreement, Transmission Service Agreement (Public Service Co of New Hampshire), Transmission Service Agreement (Nstar/Ma)
Absolute Guaranty. To The Guaranty Obligations are the fullest extent permitted by Applicable Lawimmediate, direct, primary, and except as limited by absolute obligations of Guarantor, shall not be subject to any condition precedent, and are independent of and not co-extensive with the express terms hereofLiabilities. The Guaranty Obligations shall remain in full force and effect without regard to, and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantor or the Collateral be exonerated, discharged, or released by, any of the following events:
(a) Lender's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any of the Liabilities, the liability of Collateral, or the Guarantor under this Guaranty shall be absoluteObligations, unconditional and irrevocable irrespective of, and the Guarantor waives any right or defense arising out ofincluding: (i) the lack any action or inaction of power Lender to perfect, protect, or authority of the Guarantor to execute and deliver this Guaranty or of HQSub to execute and deliver the Agreementenforce any security interest in any Collateral; (ii) any impairment or invalidity of the failure Collateral or any suspension of HQSub Lender's right to exist as a legal entity or the consolidation or merger of HQSub with or into enforce against Borrower any other corporation or other entityLiabilities, any Guaranty Obligations, or any security interest in or Lien upon the sale, lease Collateral; or other disposition by HQSub of all or substantially all of its assets to any other business entity; (iii) any disposalchange in the time, transfermanner, or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities or the Guaranty Obligations;
(b) insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or other disposition or trustee for all or any part of the direct Borrower's or indirect interest Guarantor's assets, liquidation, winding-up, or dissolution of Borrower or Guarantor;
(c) any limitation, discharge, cessation, or partial satisfaction of the Guarantor Liabilities or any Guaranty Obligations, whether by operation of any statute, regulation, or rule of law, or otherwise, regardless of the intervention or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in HQSub; (iv) the bankruptcy, insolvency, dissolution, administration, reorganization whole or liquidation of HQSubin part, the admission in writing by HQSub of its inability to pay its debts as they matureLoan Agreement, this Agreement, any other Loan Document, or its making any other document evidencing any Liabilities;
(d) any merger, acquisition, consolidation or change in structure of a general assignment for the benefit ofBorrower or Guarantor; or any sale, lease, transfer, or entering into a composition other disposition of any or arrangement with creditors all of the assets of Borrower or similar proceeding Guarantor;
(whether such right or defence is available to the Guarantor, HQSub, as debtor, or HQSub’s trustee or receiver); (ve) any failure to give to assignment or other transfer, in whole or in part, of Lender's interest in and rights under the Guarantor notice of default in the making of Loan Agreement or any payment due and payable under other Loan Document, including this Guaranty or the Agreement, or notice of Lender's interest in the Liabilities, the Guaranty Obligations, or the Collateral;
(f) any claim, defense, counterclaim, or set-off, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any failure on debt instrument evidencing the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy of the Guarantor against HQSub; (vii) subject to Section 2 of this Guaranty, any amendment, modification or extension of the Agreement; (viii) any assertion or claim that the automatic or other stay provided by Section 362 of the Bankruptcy Code Liabilities or the equivalent legislation of Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any other country arising upon bankruptcy or reorganization case related to the voluntary Collateral, the Liabilities, or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Beneficiary to enforce any rights that the Beneficiary may have against the Guarantor; and Guaranty Obligations;
(ixi) any other action or circumstances whatsoever that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with or without knowledge by reason of the Beneficiary any agreement or the Guarantor) transaction that constitutesmay be illegal, invalid, or might be construed to constitute, an equitable or legal discharge or defense of the Guarantor under this Guaranty, unenforceable in bankruptcy whole or in any other instance, including all defenses of a guarantor or surety generally, other than full, final and indefeasible payment of part; it being agreed by Guarantor that the Guaranteed Guaranty Obligations by the Guarantor and/or HQSubshall not be discharged.
Appears in 3 contracts
Samples: Guaranty Agreement (BLC Financial Services Inc), Guaranty Agreement (BLC Financial Services Inc), Guaranty Agreement (BLC Financial Services Inc)
Absolute Guaranty. To the fullest extent permitted by Applicable Law, and except as limited by the express terms hereof, the liability of the Guarantor under this Guaranty shall be absolute, unconditional and irrevocable irrespective of, and the Guarantor waives any right or defense arising out of: (i) the lack of power or authority of the Guarantor to execute and deliver this Guaranty or of HQSub NPT to execute and deliver the Agreement; (ii) the failure of HQSub NPT to exist as a legal entity or the consolidation or merger of HQSub NPT with or into any other corporation or other entity, or the sale, lease or other disposition by HQSub NPT of all or substantially all of its assets to any other business entity; (iii) any disposal, transfer, assignment or other disposition or all or any part of the direct or indirect interest of the Guarantor in HQSubNPT; (iv) the bankruptcy, insolvency, dissolution, administration, reorganization reorganization, or liquidation of HQSubNPT, the admission in writing by HQSub NPT of its inability to pay its debts as they mature, or its making of a general assignment for the benefit of, or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor, HQSubNPT, as debtor, or HQSubNPT’s trustee or receiver); (v) any failure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreement, or notice of any failure on the part of HQSub NPT to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy of the Guarantor against HQSubNPT; (vii) subject to Section 2 of this Guaranty, any amendment, modification or extension of the Agreement; (viii) any assertion or claim that the automatic or other stay provided by Section 362 of the Bankruptcy Code or the equivalent legislation of any other country arising upon the voluntary or involuntary bankruptcy proceeding of HQSub NPT shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Beneficiary to enforce any rights that the Beneficiary may have against the Guarantor; and (ix) any other circumstances whatsoever (with or without knowledge of the Beneficiary or the Guarantor) that constitutes, or might be construed to constitute, an equitable or legal discharge or defense of the Guarantor under this Guaranty, in bankruptcy or in any other instance, including all defenses of a guarantor or surety generally, other than full, final and indefeasible payment of the Guaranteed Obligations by the Guarantor and/or HQSubNPT.
Appears in 3 contracts
Samples: Transmission Service Agreement, Transmission Service Agreement (Public Service Co of New Hampshire), Transmission Service Agreement (Nstar/Ma)
Absolute Guaranty. To the fullest extent permitted by Applicable Law, Guarantor's liabilities and except as limited by the express terms hereof, the liability of the Guarantor obligations under this Guaranty shall be absolute, absolute and unconditional and irrevocable irrespective of, shall not be released, impaired, limited, reduced, conditioned upon or otherwise affected by and shall continue in full force and effect notwithstanding the occurrence of any event (other than an event consisting of payment and performance of such liabilities and obligations as provided in Paragraph 3 hereof) at any time or from time to time, including, without limitation, any one or more of the following events specified in clauses (a) through (o) of this Paragraph 4 below, and neither GE Capital nor any Lessor shall be obligated or required to take or to refrain from taking any of such actions or inactions specified below and shall not have any liability, obligation or duty whatsoever with respect to such actions or inactions, it being acknowledged and agreed by Guarantor waives that all of such liabilities, obligations and duties (if any) of GE Capital or any Lessor otherwise existing and all rights and remedies (if any) of Guarantor with respect thereto (whether such liabilities, obligations, duties, rights or remedies exist by virtue of agreement, common law, equity, statute or otherwise), and each and every defense which, under principles of guaranty or suretyship law, would otherwise operate to eliminate, impair, condition or restrict any indebtedness, liability or obligation of Guarantor for payment of the Guaranteed Obligations or otherwise under this Guaranty is hereby expressly waived by Guarantor, including, without limitation, any defense consisting of or based upon any one or more of the following matters specified in clauses (a) through (o) of this Paragraph 4 below:
(a) the taking or accepting of any security or other guaranty for any or all of the Guaranteed Obligations, whether heretofore, concurrently herewith or hereafter;
(b) any failure to create or perfect or properly create or perfect any lien, security interest or assignment intended as security, or any release, surrender, exchange, substitution, subordination or loss of any security or guaranty at any time existing in connection with any or all of the Guaranteed Obligations for any reason; or any suretyship defenses, including, without limitation, any impairment of collateral;
(c) any partial or full release of the liability or obligation of Guarantor under any other guaranty whether or not similar to this Guaranty;
(d) the entering into, delivery of, modification of, amendment to or waiver of compliance with the Restated Lease Agreement or any Credit Document, or any agreement, document or instrument evidencing, securing or otherwise affecting all or part of the Guaranteed Obligations, without the notification of Guarantor, the right of such notification being hereby specifically waived by Guarantor;
(e) the bankruptcy, insolvency, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of authority (whether corporate, partnership or trust or relating to any other entity or Person) of Savvis, Guarantor or any other Credit Party or other Person at any time liable or obligated for the payment of any or all of the Guaranteed Obligations, whether now existing or hereafter arising;
(f) any increase, reduction, renewal, extension, amendment, modification, repayment, refunding and/or rearrangement of the payment or any other terms or provisions of any or all of the Guaranteed Obligations at any time and from time to time, whether on one or more occasions, either with or without notice to or consent of Guarantor, or any adjustment, indulgence, forbearance or compromise that might be granted or given by GE Capital or any Lessor to Savvis, Guarantor or any Credit Party;
(g) any neglect, delay, omission, failure or refusal of GE Capital or any Lessor (i) to exercise or properly or diligently exercise any right or defense arising out of: (i) the lack of power remedy with respect to any or authority all of the Guarantor Guaranteed Obligations or the collection thereof or any collateral, security or guaranty therefor, whether under the Restated Lease Agreement or any other Credit Document or otherwise, including, without limitation, to execute and deliver this Guaranty ensure compliance with any term or provision of HQSub to execute and deliver the Agreement; Restated Lease Agreement or any other Credit Document, (ii) to take or prosecute or properly or diligently take or prosecute any action for the failure collection of HQSub to exist as a legal entity any or all of the consolidation Guaranteed Obligations against Savvis, Guarantor or merger of HQSub with or into any other corporation guarantor of any or other entity, or the sale, lease or other disposition by HQSub of all or substantially all of its assets to the Guaranteed Obligations and/or any other business entity; Credit Party or Person, (iii) to foreclose or prosecute or properly or diligently foreclose or prosecute any disposalaction in connection with any agreement, transferdocument or instrument or arrangement evidencing, assignment securing or other disposition or otherwise affecting all or any part of the direct Guaranteed Obligations, including, without limitation, any failure to conduct a commercially reasonable foreclosure sale, or indirect interest (iv) to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations;
(h) any failure of GE Capital or any Lessor to give notice to Savvis or Guarantor and/or any other Credit Party of, or obtain the consent of Savvis or Guarantor and/or any other Credit Party with respect to, (i) the incurrence of any of the Guaranteed Obligations, (ii) the occurrence of any "Default" or "Event of Default" as such terms are defined in the Restated Lease Agreement or any of the other Credit Documents, (iii) demand, presentment, protest, nonpayment, intention to accelerate, acceleration, lack of diligence or delay in collection of all or any part of the Guaranteed Obligations or any other matter, or the absence thereof, (iv) any renewal, extension or assignment of the Guaranteed Obligations or any part thereof, (v) the disposition or release of all or any part of any security for the Guaranteed Obligations (whether or not such disposition is commercially reasonable) or (vi) any other action taken or refrained from being taken by GE Capital or any Lessor against Savvis or any other Credit Party, it being agreed that (except as may be expressly provided in the other Credit Documents) neither GE Capital nor any Lessor shall be required to give Savvis, Guarantor or any other Credit Party any notice of any kind or to obtain Savvis', Guarantor's or any other Credit Party's consent under any circumstances whatsoever with respect to or in HQSub; connection with the Guaranteed Obligations;
(i) the unenforceability, illegality or uncollectibility of all or any part of the Guaranteed Obligations ___ against Savvis or any other Credit Party by reason of (i) failure of consideration, (ii) breach of warranty, (iii) fraud, (iv) the bankruptcyfact that the interest contracted for, insolvencycharged, dissolutioncollected or received in respect of the Guaranteed Obligations exceeds the amount permitted by law, administration, reorganization or liquidation of HQSub, the admission in writing by HQSub of its inability to pay its debts as they mature, or its making of a general assignment for the benefit of, or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor, HQSub, as debtor, or HQSub’s trustee or receiver); (v) the act of creating the Guaranteed Obligations or any failure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreementpart thereof is ultra xxxxx, or notice of any failure on the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absenceofficers, impairment directors, partners, trustees or loss representatives creating the Guaranteed Obligations acted in excess of any right of reimbursementtheir authority or lacked legal capacity, contribution or subrogation (vii) the Restated Lease Agreement or any other right Credit Document evidencing the Guaranteed Obligations has been forged or remedy otherwise is irregular or is not genuine or authentic, (viii) expiration of the applicable statute of limitations of the Guaranteed Obligations, (ix) failure to comply with the statute of frauds, (x) lender liability, or (xi) accord and satisfaction;
(j) any payment by Savvis or any other Credit Party to GE Capital or any Lessor is held to constitute a preferential transfer or a fraudulent conveyance or transfer under any applicable law, or for any reason GE Capital or any Lessor is required to refund such payment or pay such amount to Savvis or any other Credit Party or any other Person;
(k) any merger, reorganization, consolidation or dissolution of Savvis or any other Credit Party, any sale, lease or transfer of any or all of the assets of Savvis or any other Credit Party or any change in name, business, location, composition, structure or any change in the shareholders, partners or members (whether by accession, secession, death, dissolution, transfer of assets or otherwise) of Savvis or any other Credit Party;
(l) any failure of GE Capital or any Credit Party to notify Guarantor against HQSub; of (viii) subject to Section 2 the acceptance of this Guaranty, (ii) the making of loans by any amendmentLessor in reliance on this Guaranty, modification (iii) the failure of Savvis or extension any other Credit Party to make any payment due by Savvis or any other Credit Party to GE Capital or any Lessor, or (iv) any information regarding the financial condition or prospects of Savvis or any other Credit Party;
(m) any existing or future offset, claim or defense of Savvis or any other Credit Party against GE Capital or any Lessor or against payment of all or any part of the Agreement; Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (viiior the transactions creating the Guaranteed Obligations) or otherwise;
(n) any assertion full or claim that the automatic or other stay provided by Section 362 partial release of the Bankruptcy Code liability of Savvis or the equivalent legislation of any other country arising upon the voluntary Credit Party, any guarantor of all or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability any part of the Beneficiary Guaranteed Obligations or any other Person for all or any part of the Guaranteed Obligations, it being acknowledged and agreed by Guarantor that it may be required to enforce pay the Guaranteed Obligations in full without assistance or support, whether from Savvis or any rights that the Beneficiary may have against the Guarantorother Credit Party, any other guarantor or any other Person; and or
(ixo) any other circumstances whatsoever (action taken or omitted to be taken with or without knowledge respect to any of the Beneficiary Restated Lease Agreement or any other Credit Document, the Guaranteed Obligations or the Guarantor) security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that constitutes, Guarantor will be required to pay all or might be construed to constitute, an equitable or legal discharge or defense any part of the Guarantor Guaranteed Obligations pursuant to the terms hereof. The parties intend the preceding waiver of suretyship defenses to have the effects described in Section 48 of the Restatement (Third) of the Law of Suretyship and Guaranty. Without limiting the foregoing or Guarantor's liability under this Guaranty, to the extent that GE Capital and Lessors (or any of them) extended credit to Savvis and do not receive payments or benefits thereon in bankruptcy the amounts and at the times required or provided by or in connection with the Restated Lease Agreement or any other instanceCredit Document, including all defenses of Guarantor is absolutely liable to make such payments and to confer such benefits on Lessors on a guarantor or surety generally, other than full, final and indefeasible payment of the Guaranteed Obligations by the Guarantor and/or HQSubtimely basis.
Appears in 2 contracts
Samples: Guaranty Agreement (Savvis Communications Corp), Guaranty Agreement (Savvis Communications Corp)
Absolute Guaranty. To the fullest extent permitted by Applicable LawThe Guaranty Obligations shall remain in full force and effect without regard to, and except as limited by shall not be impaired or affected by, or be deemed to be satisfied by, and Guarantor shall not be exonerated, discharged or released by, any of the express terms hereoffollowing events:
(a) Lender's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the New Loan or the Guaranty Obligations or any power, right, or remedy with respect to any of the New Loan, the liability of Guaranty Obligations, or the Guarantor under this Guaranty shall be absoluteCollateral, unconditional and irrevocable irrespective of, and the Guarantor waives any right or defense arising out ofincluding without limitation: (i) the lack any action or inaction of power Lender to perfect, protect, or authority of the Guarantor to execute and deliver this Guaranty enforce any lien upon any Collateral; or of HQSub to execute and deliver the Agreement; (ii) any change in the failure time, manner, or place of HQSub to exist as a legal entity payment of, or in any other term of, any or all of the New Loan or the consolidation Guaranty Obligations, or merger of HQSub with or into any other corporation or other entityamendment to, or waiver of, the saleCredit Agreement, lease or other disposition by HQSub of all or substantially all of its assets to any other business entity; New Loan Document, or any other agreement or instrument governing or evidencing the New Loan or any of the Guaranty Obligations;
(iiib) any disposalinsolvency, transferbankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or other disposition or trustee for all or any part of the direct Borrower's or indirect interest Guarantor's assets or of the Guarantor in HQSub; (iv) assets of any other guarantor of the bankruptcyObligations, insolvencyliquidation, dissolution, administration, reorganization or liquidation of HQSub, the admission in writing by HQSub of its inability to pay its debts as they maturewinding-up, or its making dissolution of a general assignment for the benefit of, Borrower or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor, HQSub, as debtor, or HQSub’s trustee or receiver); (v) any failure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreement, or notice of any failure on the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy guarantor of the Guarantor against HQSub; Obligations;
(viic) subject to Section 2 any limitation, discharge, cessation, or partial satisfaction of the New Loan, the Guaranty Obligations, or the obligations of any other guarantor of the Obligations, or any invalidity, voidability, unenforceability, in whole or in part, of the Credit Agreement, this Guaranty, any amendmentother New Loan Document, modification or extension any other document evidencing the New Loan or Guaranty Obligations;
(d) any merger, acquisition, consolidation or change in structure of Borrower or Guarantor or any other guarantor of the AgreementObligations; or any sale, lease, transfer, or other disposition of any or all of the assets or Equity Interests of Borrowers or Guarantor or any other guarantor of the Obligations, including, without limitation, any transfer by Borrower of all or any part of any Collateral, or termination of Borrower's existence for any reason;
(viiie) any assertion or claim that the automatic assignment or other stay provided by Section 362 transfer, in whole or in part, of Lender's interest in or rights in or under the Credit Agreement, or any other New Loan Document, including, without limitation, this Guaranty, or with respect to the New Loan, the Guaranty Obligations, or the Collateral;
(f) any claim, defense, counterclaim, or setoff that Borrower or Guarantor or any other guarantor of the Bankruptcy Obligations may have or assert, including, without limitation, any defense of incapacity, disability, or lack of corporate, organizational or other authority to execute any document relating to the New Loan, the Guaranty Obligations, the Collateral, or any other Guaranty, other than (i) upon the occurrence of the Guaranty Termination Date, the defense of prior performance, or (ii) any defense based on any applicable provision of the Uniform Commercial Code requiring that Collateral be disposed of in a commercially reasonable manner;
(g) any cancellation, renunciation or surrender of any pledge, guaranty, or any debt instrument evidencing the New Loan or the equivalent legislation Guaranty Obligations;
(h) the vote, claim, distribution, election, acceptance, action, or inaction of Lender in any other country arising upon bankruptcy or reorganization case related to the voluntary New Loan, the Guaranty Obligations, or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Beneficiary to enforce any rights that the Beneficiary may have against the GuarantorCollateral; and or
(ixi) any other action or circumstances whatsoever (with or without knowledge of the Beneficiary or the Guarantor) that constitutesmight otherwise constitute a defense available to, or might be construed to constitutea legal or equitable discharge of, an equitable or legal discharge or defense of the Guarantor under this Guarantyany surety, in bankruptcy or in any other instance, including all defenses of a guarantor or surety generally, other than full, final and indefeasible payment of Guarantor; it being agreed that the Guaranteed Guaranty Obligations by shall not be discharged until the Guarantor and/or HQSubGuaranty Termination Date.
Appears in 2 contracts
Samples: Guaranty Agreement (Integrated Healthcare Holdings Inc), Guaranty Agreement (Integrated Healthcare Holdings Inc)
Absolute Guaranty. To the fullest extent permitted by Applicable Law, and except as limited by the express terms hereof, the liability The guaranty of the Guarantor under this Guaranty Agreement is a guaranty of payment and not of collection and shall be absoluteremain in effect until all of the Guarantor’s Obligations are indefeasibly paid in full. The Guarantor’s Obligations are the primary, unconditional and irrevocable irrespective ofdirect, and the Guarantor waives any right or defense arising out of: (i) the lack of power or authority immediate obligations of the Guarantor and shall not be affected by, subject to, or conditioned upon, and may be enforced against the Guarantor irrespective of the occurrence of, any of the following:
(a) Any pursuit, enforcement, or exhaustion of any rights or remedies the Administration may have to execute and deliver this Guaranty collect the Guarantor’s Obligations from the Borrower or of HQSub to execute and deliver the Agreement; (ii) the failure of HQSub to exist as a legal entity or the consolidation or merger of HQSub with or into from any other corporation maker, endorser, surety or other entityguarantor of, or the salepledgor of collateral for, lease or other disposition by HQSub of all or substantially all of its assets to any other business entity; (iii) any disposal, transfer, assignment or other disposition or all or any part of the direct Guarantor’s Obligations (each other maker, endorser, surety, guarantor or indirect interest pledgor being an “Obligor” and collectively “Obligors”), or any recourse to or against any collateral or security for any part of the Guarantor in HQSub; Guarantor’s Obligations;
(ivb) the bankruptcyThe invalidity, insolvency, dissolution, administration, reorganization or liquidation lack of HQSub, the admission in writing by HQSub of its inability to pay its debts as they maturepriority, or its making unenforceability in whole or in part of a general assignment for any the benefit ofFinancing Documents;
(c) Any counterclaim, recoupment, setoff, reduction, or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor, HQSub, as debtor, or HQSub’s trustee or receiver); (v) defense based on any failure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreement, or notice of any failure on the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy of the Guarantor against HQSub; (vii) subject to Section 2 of this Guaranty, any amendment, modification or extension of the Agreement; (viii) any assertion or claim that the automatic or other stay provided by Section 362 of the Bankruptcy Code or the equivalent legislation of any other country arising upon the voluntary or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Beneficiary to enforce any rights that the Beneficiary Guarantor may have against the Guarantor; and Administration, the Borrower, or any Obligor;
(ixd) any The voluntary or involuntary liquidation, dissolution, termination, merger, sale, or other circumstances whatsoever (with or without knowledge disposition of the Beneficiary Borrower or any of the GuarantorBorrower’s assets;
(e) that constitutesAny bankruptcy, reorganization, insolvency, or similar proceedings for the relief of debtors under any federal or state law by or against the Borrower or any Obligor, or any discharge, limitation, modification, or release of liability of the Borrower or any Obligor arising out of any such proceedings;
(f) Any event or matter to which the Guarantor has consented under the terms of this Agreement; and
(g) Any other circumstance that might be construed to constituteotherwise constitute a legal or equitable discharge, an equitable or legal discharge release, or defense of the Guarantor under this Guaranty, in bankruptcy or in any other instance, including all defenses of a guarantor or surety generally, Obligor (other than full, final and indefeasible payment of the Guaranteed Obligations by the Guarantor and/or HQSubGuarantor).
Appears in 2 contracts
Samples: Personal Guaranty Agreement, Personal Guaranty Agreement
Absolute Guaranty. To the fullest extent permitted by Applicable Law, Guarantor's liabilities and except as limited by the express terms hereof, the liability of the Guarantor obligations under this Guaranty shall be absolute, absolute and unconditional and irrevocable irrespective of, shall not be released, impaired, limited, reduced, conditioned upon or otherwise affected by and shall continue in full force and effect notwithstanding the occurrence of any event (other than an event consisting of payment and performance of such liabilities and obligations as provided in Paragraph 3 hereof) at any time or from time to time, including, without limitation, any one or more of the following events specified in clauses (a) through (n) of this Paragraph 4 below, and neither Administrative Agent nor any Lender shall be obligated or required to take or to refrain from taking any of such actions or inactions specified below and shall not have any liability, obligation or duty whatsoever with respect to such actions or inactions, it being acknowledged and agreed by Guarantor waives that all of such liabilities, obligations and duties (if any) of Administrative Agent or any Lender otherwise existing and all rights and remedies (if any) of Guarantor with respect thereto (whether such liabilities, obligations, duties, rights or remedies exist by virtue of agreement, common law, equity, statute or otherwise), and each and every defense which, under principles of guaranty or suretyship law, would otherwise operate to eliminate, impair, condition or restrict the liabilities and obligations of Guarantor for the Guaranteed Obligations, are hereby expressly waived by Guarantor:
(a) the taking or accepting of any security or other guaranty for any or all of the Guaranteed Obligations, whether heretofore, concurrently herewith or hereafter;
(b) any failure to create or perfect or properly create or perfect any lien, security interest or assignment intended as security, or any release, surrender, exchange, substitution, subordination or loss of any security or guaranty at any time existing in connection with any or all of the Guaranteed Obligations for any reason; or any suretyship defenses, including, without limitation, any impairment of collateral;
(c) any partial or full release of the liability or obligation of Guarantor under any other guaranty whether or not similar to this Guaranty;
(d) the entering into, delivery of, modification of, amendment to or waiver of compliance with the Credit Agreement, any Note or any other Loan Document, or any agreement, document or instrument evidencing, securing or otherwise affecting all or part of the Guaranteed Obligations, without the notification of Guarantor, the right of such notification being hereby specifically waived by Guarantor;
(e) the bankruptcy, insolvency, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of authority (whether corporate, partnership or trust or relating to any other entity or Person) of Borrower, Guarantor or any other Person at any time liable or obligated for the payment of any or all of the Guaranteed Obligations, whether now existing or hereafter arising;
(f) any increase, reduction, renewal, extension, amendment, modification, repayment, refunding and/or rearrangement of the payment or any other terms or provisions of any or all of the Guaranteed Obligations at any time and from time to time, whether on one or more occasions, either with or without notice to or consent of Guarantor, or any adjustment, indulgence, forbearance or compromise that might be granted or given by Administrative Agent or any Lender to Borrower or Guarantor;
(g) any neglect, delay, omission, failure or refusal of Administrative Agent or any Lender (i) to exercise or properly or diligently exercise any right or defense arising out of: (i) the lack of power remedy with respect to any or authority all of the Guarantor Guaranteed Obligations or the collection thereof or any collateral, security or guaranty therefor, whether under the Credit Agreement, any Note or any other Loan Document or otherwise, including, without limitation, to execute and deliver this Guaranty ensure compliance with any term or provision of HQSub to execute and deliver the Agreement; Credit Agreement or any other Loan Document, (ii) to take or prosecute or properly or diligently take or prosecute any action for the failure collection of HQSub to exist as a legal entity any or all of the consolidation Guaranteed Obligations against Borrower, Guarantor or merger of HQSub with or into any other corporation guarantor of any or other entity, or the sale, lease or other disposition by HQSub of all or substantially all of its assets to the Guaranteed Obligations and/or any other business entity; Person, (iii) to foreclose or prosecute or properly or diligently foreclose or prosecute any disposalaction in connection with any agreement, transferdocument or instrument or arrangement evidencing, assignment securing or other disposition or otherwise affecting all or any part of the direct Guaranteed Obligations, including, without limitation, any failure to conduct a commercially reasonable foreclosure sale, or indirect interest (iv) to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations;
(h) any failure of Administrative Agent or any Lender to give notice to Borrower and/or Guarantor of, or obtain the consent of Borrower and/or Guarantor with respect to, (i) the incurrence of any of the Guaranteed Obligations, (ii) the occurrence of any "Default" or "Event of Default" as such terms are defined in the Credit Agreement or any of the other Loan Document, (iii) demand, presentment, protest, nonpayment, intention to accelerate, acceleration, lack of diligence or delay in collection of all or any part of the Guaranteed Obligations or any other matter, or the absence thereof, (iv) any renewal, extension or assignment of the Guaranteed Obligations or any part thereof, (vi) the disposition or release of all or any part of any security for the Guaranteed Obligations (whether or not such disposition is commercially reasonable) or (vi) any other action taken or refrained from being taken by Administrative Agent or any Lender against Borrower, it being agreed that (except as may be expressly provided in the other Loan Documents) neither Administrative Agent nor any Lender shall be required to give Borrower or Guarantor any notice of any kind or to obtain Borrower's or Guarantor's consent under any circumstances whatsoever with respect to or in HQSub; connection with the Guaranteed Obligations;
(i) the unenforceability, illegality or uncollectibility of all or any part of the Guaranteed Obligations against Borrower by reason of (i) failure of consideration, (ii) breach of warranty, (iii) fraud, (iv) the bankruptcyfact that the interest contracted for, insolvencycharged, dissolutioncollected or received in respect of the Guaranteed Obligations exceeds the amount permitted by law, administration, reorganization or liquidation of HQSub, the admission in writing by HQSub of its inability to pay its debts as they mature, or its making of a general assignment for the benefit of, or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor, HQSub, as debtor, or HQSub’s trustee or receiver); (v) the act of creating the Guaranteed Obligations or any failure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreementpart thereof is ultra xxxxx, or notice of any failure on the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absenceofficers, impairment directors, partners, trustees or loss representatives creating the Guaranteed Obligations acted in excess of their authority or lacked legal capacity, (vii) the Credit Agreement, any right of reimbursement, contribution or subrogation Note or any other right Loan Document evidencing the Guaranteed Obligations has been forged or remedy otherwise is irregular or is not genuine or authentic, (viii) expiration of the applicable statute of limitations of the Guaranteed Obligations, (ix) failure to comply with the statute of frauds, (x) lender liability, or (xi) accord and satisfaction;
(j) any payment by Borrower to Administrative Agent or any Lender is held to constitute a preferential transfer or a fraudulent conveyance or transfer under any applicable law, or for any reason Administrative Agent or any Lender is required to refund such payment or pay such amount to Borrower or any other Person;
(k) any merger, reorganization, consolidation or dissolution of Borrower, any sale, lease or transfer of any or all of the assets of Borrower, or any change in name, business, location, composition, structure or any change in the shareholders, partners or members (whether by accession, secession, death, dissolution, transfer of assets or otherwise) of Borrower;
(l) any failure of Administrative Agent or any Lender to notify Guarantor against HQSub; of (viii) subject to Section 2 the acceptance of this Guaranty, (ii) the making of Loans by any amendmentLender in reliance on this Guaranty, modification (iii) the failure of Borrower to make any payment due by Borrower to Administrative Agent or extension any Lender, or (iv) any information regarding the financial condition or prospects of Borrower;
(m) any full or partial release of the Agreement; (viii) liability of Borrower, any assertion guarantor of all or claim that the automatic or other stay provided by Section 362 any part of the Bankruptcy Code Guaranteed Obligations or the equivalent legislation of any other country arising upon the voluntary Person for all or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability any part of the Beneficiary Guaranteed Obligations, it being acknowledged and agreed by Guarantor that it may be required to enforce pay the Guaranteed Obligations in full without assistance or support, whether from Borrower, any rights that the Beneficiary may have against the Guarantorother guarantor or any other Person; and or
(ixn) any other circumstances whatsoever (action taken or omitted to be taken with or without knowledge respect to any of the Beneficiary Credit Agreement, any Note or any other Loan Document, the Guaranteed Obligations or the Guarantor) security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that constitutes, Guarantor will be required to pay all or might be construed to constitute, an equitable or legal discharge or defense any part of the Guarantor Guaranteed Obligations pursuant to the terms hereof. Without limiting the foregoing or Guarantor's liability under this Guaranty, to the extent that Administrative Agent and Lenders (or any of them) have advanced funds or extended credit to Borrower and do not receive payments or benefits thereon in bankruptcy the amounts and at the times required or provided by or in connection with the Credit Agreement, any Notes or any other instanceLoan Document, including all defenses of Guarantor is absolutely liable to make such payments and to confer such benefits on Lenders on a guarantor or surety generally, other than full, final and indefeasible payment of the Guaranteed Obligations by the Guarantor and/or HQSubtimely basis.
Appears in 2 contracts
Samples: Guaranty Agreement (Savvis Communications Corp), Guaranty Agreement (Savvis Communications Corp)
Absolute Guaranty. To the fullest extent permitted by Applicable LawThe Guaranty Obligations shall remain in full force and effect without regard to, and except as limited by shall not be impaired or affected by, or be deemed to be satisfied by, and Guarantor shall not be exonerated, discharged or released by, any of the express terms hereoffollowing events:
(a) Lender's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Loan or the Guaranty Obligations or any power, right, or remedy with respect to any of the Loan, the liability of Guaranty Obligations, or the Guarantor under this Guaranty shall be absoluteCollateral, unconditional and irrevocable irrespective of, and the Guarantor waives any right or defense arising out ofincluding without limitation: (i) the lack any action or inaction of power Lender to perfect, protect, or authority of the Guarantor to execute and deliver this Guaranty enforce any lien upon any Collateral; or of HQSub to execute and deliver the Agreement; (ii) any change in the failure time, manner, or place of HQSub to exist as a legal entity payment of, or in any other term of, any or all of the Loan or the consolidation Guaranty Obligations, or merger of HQSub with or into any other corporation or other entityamendment to, or waiver of, the saleCredit Agreement, lease or other disposition by HQSub of all or substantially all of its assets to any other business entity; Loan Document, or any other agreement or instrument governing or evidencing the Loan or any of the Guaranty Obligations;
(iiib) any disposalinsolvency, transferbankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or other disposition or trustee for all or any part of the direct Borrower's or indirect interest Guarantor's assets or of the Guarantor in HQSub; (iv) assets of any other guarantor of the bankruptcyObligations, insolvencyliquidation, dissolution, administration, reorganization or liquidation of HQSub, the admission in writing by HQSub of its inability to pay its debts as they maturewinding-up, or its making dissolution of a general assignment for the benefit of, Borrower or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor, HQSub, as debtor, or HQSub’s trustee or receiver); (v) any failure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreement, or notice of any failure on the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy guarantor of the Guarantor against HQSub; Obligations;
(viic) subject to Section 2 any limitation, discharge, cessation, or partial satisfaction of the Loan, the Guaranty Obligations, or the obligations of any other guarantor of the Obligations, or any invalidity, voidability, unenforceability, in whole or in part, of the Credit Agreement, this Guaranty, any amendmentother Loan Document, modification or extension any other document evidencing the Loan or Guaranty Obligations;
(d) any merger, acquisition, consolidation or change in structure of Borrower or Guarantor or any other guarantor of the AgreementObligations; or any sale, lease, transfer, or other disposition of any or all of the assets or Equity Interests of any Borrowers or Guarantor or any other guarantor of the Obligations, including, without limitation, any transfer by Borrower of all or any part of any Collateral, or termination of Borrower's existence for any reason;
(viiie) any assertion or claim that the automatic assignment or other stay provided by Section 362 transfer, in whole or in part, of Lender's interest in or rights in or under the Credit Agreement, or any other Loan Document, including, without limitation, this Guaranty, or with respect to the Loan, the Guaranty Obligations, or the Collateral;
(f) any claim, defense, counterclaim, or setoff that Borrower or Guarantor or any other guarantor of the Bankruptcy Obligations may have or assert, including, without limitation, any defense of incapacity, disability, or lack of corporate, organizational or other authority to execute any document relating to the Loan, the Guaranty Obligations, the Collateral, or any other Guaranty, other than (i) upon the occurrence of the Guaranty Termination Date, the defense of prior performance, or (ii) any defense based on any applicable provision of the Uniform Commercial Code requiring that Collateral be disposed of in a commercially reasonable manner;
(g) any cancellation, renunciation or surrender of any pledge, guaranty, or any debt instrument evidencing the Loan or the equivalent legislation Guaranty Obligations;
(h) the vote, claim, distribution, election, acceptance, action, or inaction of Lender in any other country arising upon bankruptcy or reorganization case related to the voluntary Loan, the Guaranty Obligations, or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Beneficiary to enforce any rights that the Beneficiary may have against the GuarantorCollateral; and or
(ixi) any other action or circumstances whatsoever (with or without knowledge of the Beneficiary or the Guarantor) that constitutesmight otherwise constitute a defense available to, or might be construed to constitutea legal or equitable discharge of, an equitable or legal discharge or defense of the Guarantor under this Guarantyany surety, in bankruptcy or in any other instance, including all defenses of a guarantor or surety generally, other than full, final and indefeasible payment of Guarantor; it being agreed that the Guaranteed Guaranty Obligations by shall not be discharged until the Guarantor and/or HQSubGuaranty Termination Date.
Appears in 2 contracts
Samples: Guaranty Agreement (Integrated Healthcare Holdings), Guaranty Agreement (Integrated Healthcare Holdings)
Absolute Guaranty. To the fullest extent permitted by Applicable Law, Guarantor's liabilities and except as limited by the express terms hereof, the liability of the Guarantor obligations under this Guaranty shall be absolute, absolute and unconditional and irrevocable irrespective of, shall not be released, impaired, limited, reduced, conditioned upon or otherwise affected by and shall continue in full force and effect notwithstanding the occurrence of any event (other than an event consisting of payment and performance of such liabilities and obligations as provided in Paragraph 3 hereof) at any time or from time to time, including, without limitation, any one or more of the following events specified in clauses (a) through (o) of this Paragraph 4 below, and neither GE Capital nor any Lessor shall be obligated or required to take or to refrain from taking any of such actions or inactions specified below and shall not have any liability, obligation or duty whatsoever with respect to such actions or inactions, it being acknowledged and agreed by Guarantor waives that all of such liabilities, obligations and duties (if any) of GE Capital or any Lessor otherwise existing and all rights and remedies (if any) of Guarantor with respect thereto (whether such liabilities, obligations, duties, rights or remedies exist by virtue of agreement, common law, equity, statute or otherwise), and each and every defense which, under principles of guaranty or suretyship law, would otherwise operate to eliminate, impair, condition or restrict any indebtedness, liability or obligation of Guarantor for payment of the Guaranteed Obligations or otherwise under this Guaranty is hereby expressly waived by Guarantor, including, without limitation, any defense consisting of or based upon any one or more of the following matters specified in clauses (a) through (o) of this Paragraph 4 below:
(a) the taking or accepting of any security or other guaranty for any or all of the Guaranteed Obligations, whether heretofore, concurrently herewith or hereafter;
(b) any failure to create or perfect or properly create or perfect any lien, security interest or assignment intended as security, or any release, surrender, exchange, substitution, subordination or loss of any security or guaranty at any time existing in connection with any or all of the Guaranteed Obligations for any reason; or any suretyship defenses, including, without limitation, any impairment of collateral;
(c) any partial or full release of the liability or obligation of Guarantor under any other guaranty whether or not similar to this Guaranty;
(d) the entering into, delivery of, modification of, amendment to or waiver of compliance with the Restated Lease Agreement or any Credit Document, or any agreement, document or instrument evidencing, securing or otherwise affecting all or part of the Guaranteed Obligations, without the notification of Guarantor, the right of such notification being hereby specifically waived by Guarantor;
(e) the bankruptcy, insolvency, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of authority (whether corporate, partnership or trust or relating to any other entity or Person) of Savvis, Guarantor or any other Credit Party or other Person at any time liable or obligated for the payment of any or all of the Guaranteed Obligations, whether now existing or hereafter arising;
(f) any increase, reduction, renewal, extension, amendment, modification, repayment, refunding and/or rearrangement of the payment or any other terms or provisions of any or all of the Guaranteed Obligations at any time and from time to time, whether on one or more occasions, either with or without notice to or consent of Guarantor, or any adjustment, indulgence, forbearance or compromise that might be granted or given by GE Capital or any Lessor to Savvis, Guarantor or any Credit Party;
(g) any neglect, delay, omission, failure or refusal of GE Capital or any Lessor (i) to exercise or properly or diligently exercise any right or defense arising out of: (i) the lack of power remedy with respect to any or authority all of the Guarantor Guaranteed Obligations or the collection thereof or any collateral, security or guaranty therefor, whether under the Restated Lease Agreement or any other Credit Document or otherwise, including, without limitation, to execute and deliver this Guaranty ensure compliance with any term or provision of HQSub to execute and deliver the Agreement; Restated Lease Agreement or any other Credit Document, (ii) to take or prosecute or properly or diligently take or prosecute any action for the failure collection of HQSub to exist as a legal entity any or all of the consolidation Guaranteed Obligations against Savvis, Guarantor or merger of HQSub with or into any other corporation guarantor of any or other entity, or the sale, lease or other disposition by HQSub of all or substantially all of its assets to the Guaranteed Obligations and/or any other business entity; Credit Party or Person, (iii) to foreclose or prosecute or properly or diligently foreclose or prosecute any disposalaction in connection with any agreement, transferdocument or instrument or arrangement evidencing, assignment securing or other disposition or otherwise affecting all or any part of the direct Guaranteed Obligations, including, without limitation, any failure to conduct a commercially reasonable foreclosure sale, or indirect interest (iv) to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations;
(h) any failure of GE Capital or any Lessor to give notice to Savvis or Guarantor and/or any other Credit Party of, or obtain the consent of Savvis or Guarantor and/or any other Credit Party with respect to, (i) the incurrence of any of the Guaranteed Obligations, (ii) the occurrence of any "Default" or "Event of Default" as such terms are defined in the Restated Lease Agreement or any of the other Credit Documents, (iii) demand, presentment, protest, nonpayment, intention to accelerate, acceleration, lack of diligence or delay in collection of all or any part of the Guaranteed Obligations or any other matter, or the absence thereof, (iv) any renewal, extension or assignment of the Guaranteed Obligations or any part thereof, (v) the disposition or release of all or any part of any security for the Guaranteed Obligations (whether or not such disposition is commercially reasonable) or (vi) any other action taken or refrained from being taken by GE Capital or any Lessor against Savvis or any other Credit Party, it being agreed that (except as may be expressly provided in the other Credit Documents) neither GE Capital nor any Lessor shall be required to give Savvis, Guarantor or any other Credit Party any notice of any kind or to obtain Savvis', Guarantor's or any other Credit Party's consent under any circumstances whatsoever with respect to or in HQSub; connection with the Guaranteed Obligations;
(i) the unenforceability, illegality or uncollectibility of all or any part of the Guaranteed Obligations against Savvis or any other Credit Party by reason of (i) failure of consideration, (ii) breach of warranty, (iii) fraud, (iv) the bankruptcyfact that the interest contracted for, insolvencycharged, dissolutioncollected or received in respect of the Guaranteed Obligations exceeds the amount permitted by law, administration, reorganization or liquidation of HQSub, the admission in writing by HQSub of its inability to pay its debts as they mature, or its making of a general assignment for the benefit of, or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor, HQSub, as debtor, or HQSub’s trustee or receiver); (v) the act of creating the Guaranteed Obligations or any failure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreementpart thereof is ultra xxxxx, or notice of any failure on the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absenceofficers, impairment directors, partners, trustees or loss representatives creating the Guaranteed Obligations acted in excess of any right of reimbursementtheir authority or lacked legal capacity, contribution or subrogation (vii) the Restated Lease Agreement or any other right Credit Document evidencing the Guaranteed Obligations has been forged or remedy otherwise is irregular or is not genuine or authentic, (viii) expiration of the applicable statute of limitations of the Guaranteed Obligations, (ix) failure to comply with the statute of frauds, (x) lender liability, or (xi) accord and satisfaction;
(j) any payment by Savvis or any other Credit Party to GE Capital or any Lessor is held to constitute a preferential transfer or a fraudulent conveyance or transfer under any applicable law, or for any reason GE Capital or any Lessor is required to refund such payment or pay such amount to Savvis or any other Credit Party or any other Person;
(k) any merger, reorganization, consolidation or dissolution of Savvis or any other Credit Party, any sale, lease or transfer of any or all of the assets of Savvis or any other Credit Party or any change in name, business, location, composition, structure or any change in the shareholders, partners or members (whether by accession, secession, death, dissolution, transfer of assets or otherwise) of Savvis or any other Credit Party;
(l) any failure of GE Capital or any Credit Party to notify Guarantor against HQSub; of (viii) subject to Section 2 the acceptance of this Guaranty, (ii) the making of loans by any amendmentLessor in reliance on this Guaranty, modification (iii) the failure of Savvis or extension any other Credit Party to make any payment due by Savvis or any other Credit Party to GE Capital or any Lessor, or (iv) any information regarding the financial condition or prospects of Savvis or any other Credit Party;
(m) any existing or future offset, claim or defense of Savvis or any other Credit Party against GE Capital or any Lessor or against payment of all or any part of the Agreement; Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (viiior the transactions creating the Guaranteed Obligations) or otherwise;
(n) any assertion full or claim that the automatic or other stay provided by Section 362 partial release of the Bankruptcy Code liability of Savvis or the equivalent legislation of any other country arising upon the voluntary Credit Party, any guarantor of all or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability any part of the Beneficiary Guaranteed Obligations or any other Person for all or any part of the Guaranteed Obligations, it being acknowledged and agreed by Guarantor that it may be required to enforce pay the Guaranteed Obligations in full without assistance or support, whether from Savvis or any rights that the Beneficiary may have against the Guarantorother Credit Party, any other guarantor or any other Person; and or
(ixo) any other circumstances whatsoever (action taken or omitted to be taken with or without knowledge respect to any of the Beneficiary Restated Lease Agreement or any other Credit Document, the Guaranteed Obligations or the Guarantor) security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that constitutes, Guarantor will be required to pay all or might be construed to constitute, an equitable or legal discharge or defense any part of the Guarantor Guaranteed Obligations pursuant to the terms hereof. The parties intend the preceding waiver of suretyship defenses to have the effects described in Section 48 of the Restatement (Third) of the Law of Suretyship and Guaranty. Without limiting the foregoing or Guarantor's liability under this Guaranty, to the extent that GE Capital and Lessors (or any of them) extended credit to Savvis and do not receive payments or benefits thereon in bankruptcy the amounts and at the times required or provided by or in connection with the Restated Lease Agreement or any other instanceCredit Document, including all defenses of Guarantor is absolutely liable to make such payments and to confer such benefits on Lessors on a guarantor or surety generally, other than full, final and indefeasible payment of the Guaranteed Obligations by the Guarantor and/or HQSubtimely basis.
Appears in 2 contracts
Samples: Guaranty Agreement (Savvis Communications Corp), Guaranty Agreement (Savvis Communications Corp)
Absolute Guaranty. To The Guaranty Obligations are the fullest extent permitted by Applicable Lawimmediate, direct, primary, and except as limited by absolute obligations of Guarantor, shall not be subject to any condition precedent, and are independent of and not co-extensive with the express terms hereofLiabilities. The Guaranty Obligations shall remain in full force and effect without regard to, and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantor or the Collateral be exonerated, discharged, or released by, any of the following events:
(a) Lender's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Liabilities or any power, right, or remedy with respect to any of the Liabilities, the liability of Collateral, or the Guarantor under this Guaranty shall be absoluteObligations, unconditional and irrevocable irrespective of, and the Guarantor waives any right or defense arising out ofincluding: (i) the lack any action or inaction of power Lender to perfect, protect, or authority of the Guarantor to execute and deliver this Guaranty or of HQSub to execute and deliver the Agreementenforce any security interest in any Collateral; (ii) any impairment or invalidity of the failure Collateral or any suspension of HQSub Lender's right to exist as a legal entity or the consolidation or merger of HQSub with or into enforce against Borrower any other corporation or other entityLiabilities, any Guaranty Obligations, or any security interest in or Lien upon the sale, lease Collateral; or other disposition by HQSub of all or substantially all of its assets to any other business entity; (iii) any disposalchange in the time, transfermanner, or place of payment of, or in any other term of, any or all of the Liabilities or the Guaranty Obligations, or any other amendment to or waiver of the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Liabilities or the Guaranty Obligations;
(b) insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or other disposition or trustee for all or any part of the direct Borrower's or indirect interest Guarantor's assets, liquidation, winding-up, or dissolution of Borrower or Guarantor,
(c) any limitation, discharge, cessation, or partial satisfaction of the Guarantor Liabilities or any Guaranty Obligations, whether by operation of any statute, regulation, or rule of law, or otherwise, regardless of the intervention or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in HQSub; (iv) the bankruptcy, insolvency, dissolution, administration, reorganization whole or liquidation of HQSubin part, the admission in writing by HQSub of its inability to pay its debts as they matureLoan Agreement, this Agreement, any other Loan Document, or its making any other document evidencing any Liabilities;
(d) any merger, acquisition, consolidation or change in structure of a general assignment for the benefit ofBorrower or Guarantor; or any sale, lease, transfer, or entering into a composition other disposition of any or arrangement with creditors all of the assets of Borrower or similar proceeding Guarantor;
(whether such right or defence is available to the Guarantor, HQSub, as debtor, or HQSub’s trustee or receiver); (ve) any failure to give to assignment or other transfer, in whole or in part, of Lender's interest in and rights under the Guarantor notice of default in the making of Loan Agreement or any payment due and payable under other Loan Document, including this Guaranty or the Agreement, or notice of Lender's interest in the Liabilities, the Guaranty Obligations, or the Collateral;
(f) any claim, defense, counterclaim, or set-off, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any failure on debt instrument evidencing the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy of the Guarantor against HQSub; (vii) subject to Section 2 of this Guaranty, any amendment, modification or extension of the Agreement; (viii) any assertion or claim that the automatic or other stay provided by Section 362 of the Bankruptcy Code Liabilities or the equivalent legislation of Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any other country arising upon bankruptcy or reorganization case related to the voluntary Collateral, the Liabilities, or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Beneficiary to enforce any rights that the Beneficiary may have against the Guarantor; and Guaranty Obligations;
(ixi) any other action or circumstances whatsoever that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor, or
(j) the fact that any of the Liabilities or the Guaranty Obligations may become due or payable in connection with or without knowledge by reason of the Beneficiary any agreement or the Guarantor) transaction that constitutesmay be illegal, invalid, or might be construed to constitute, an equitable or legal discharge or defense of the Guarantor under this Guaranty, unenforceable in bankruptcy whole or in any other instance, including all defenses of a guarantor or surety generally, other than full, final and indefeasible payment of part; it being agreed by Guarantor that the Guaranteed Guaranty Obligations by the Guarantor and/or HQSubshall not be discharged.
Appears in 1 contract
Absolute Guaranty. To the fullest extent permitted by Applicable Law, No Guarantor’s liabilities and except as limited by the express terms hereof, the liability of the Guarantor obligations under this Guaranty shall be absolutereleased, unconditional and irrevocable irrespective ofimpaired, limited, reduced, conditioned upon or otherwise affected by, and such liabilities and obligations shall continue in full force and effect notwithstanding, the Guarantor waives occurrence of any right event (other than an event consisting of payment and performance of such liabilities and obligations as provided in Paragraph 3 hereof) at any time or defense arising out of: (i) the lack of power from time to time, including, without limitation, any one or authority more of the following events specified in clauses (a) through (r) of this Paragraph 4 below, and neither the Administrative Agent nor any Lender shall be obligated or required to take or to refrain from taking any of such actions or inactions specified below and shall have no liability, obligation or duty whatsoever with respect to such actions or inactions, it being acknowledged and agreed by each Guarantor to execute and deliver this Guaranty or of HQSub to execute and deliver the Agreement; (ii) the failure of HQSub to exist as a legal entity or the consolidation or merger of HQSub with or into any other corporation or other entity, or the sale, lease or other disposition by HQSub of all or substantially that all of its assets to any other business entity; such liabilities, obligations and duties (iiiif any) any disposal, transfer, assignment or other disposition or all or any part of the direct or indirect interest Administrative Agent and the Lender otherwise existing and all rights and remedies (if any) of the each Guarantor in HQSub; (iv) the bankruptcy, insolvency, dissolution, administration, reorganization or liquidation of HQSub, the admission in writing by HQSub of its inability to pay its debts as they mature, or its making of a general assignment for the benefit of, or entering into a composition or arrangement with creditors or similar proceeding respect thereto (whether such right liabilities, obligations, duties, rights or defence is available remedies exist by virtue of agreement, common law, equity, statute or otherwise), and each and every defense which, under principles of guaranty or suretyship law, would otherwise operate to eliminate, impair, condition or restrict the liabilities and obligations of any Guarantor for the Guaranteed Obligations, are hereby expressly waived by each Guarantor:
(a) The taking or accepting of any security or other guaranty for any or all of the Guaranteed Obligations, HQSubwhether heretofore, concurrently herewith or hereafter;
(b) Any failure to create or perfect or properly create or perfect any lien, security interest or assignment intended as debtorsecurity, or HQSub’s trustee any release, surrender, exchange, substitution, subordination or receiver); (v) any failure to give to the Guarantor notice of default in the making loss of any payment due and payable security or guaranty at any time existing in connection with any or all of the Guaranteed Obligations for any reason;
(c) Any partial or full release of the liability or obligation of any other Guarantor under this Guaranty or any other guaranty whether or not similar to this Guaranty, or any partial or full release of the liability or obligation of any other guarantor of the Guaranteed Obligations;
(d) The entering into, delivery of, modification of, amendment to or waiver of compliance with the Credit Agreement, or notice any Note, any Letter of any failure on the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation Credit or any other right or remedy of the Guarantor against HQSub; (vii) subject to Section 2 of this Guaranty, any amendment, modification or extension of the Agreement; (viii) any assertion or claim that the automatic or other stay provided by Section 362 of the Bankruptcy Code or the equivalent legislation of any other country arising upon the voluntary or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Beneficiary to enforce any rights that the Beneficiary may have against the Guarantor; and (ix) any other circumstances whatsoever (with or without knowledge of the Beneficiary or the Guarantor) that constitutesLoan Document, or might be construed to constituteany agreement, an equitable document or legal discharge instrument evidencing, securing or defense of the Guarantor under this Guaranty, in bankruptcy otherwise affecting all or in any other instance, including all defenses of a guarantor or surety generally, other than full, final and indefeasible payment part of the Guaranteed Obligations Obligations, without the notification of any Guarantor, the right of such notification being hereby specifically waived by the Guarantor and/or HQSub.each Guarantor;
Appears in 1 contract
Samples: Credit Agreement (Sourcecorp Inc)
Absolute Guaranty. To Guarantor agrees that the fullest extent permitted by Applicable Lawliability hereunder shall be the immediate, direct and except as limited by primary obligation of Guarantor and shall not be contingent upon Agent's exercise or enforcement of any remedy it may have against Borrower or any other Person. Without limiting the express terms hereofgenerality of the foregoing, the liability Guaranty Obligations shall remain in full force and effect without regard to and shall not be impaired or affected by, nor shall Guarantor be exonerated or discharged by, any of the Guarantor under this Guaranty shall be absolutefollowing events:
(a) Insolvency, unconditional and irrevocable irrespective of, and the Guarantor waives any right or defense arising out of: (i) the lack of power or authority of the Guarantor to execute and deliver this Guaranty or of HQSub to execute and deliver the Agreement; (ii) the failure of HQSub to exist as a legal entity or the consolidation or merger of HQSub with or into any other corporation or other entity, or the sale, lease or other disposition by HQSub of all or substantially all of its assets to any other business entity; (iii) any disposal, transfer, assignment or other disposition or all or any part of the direct or indirect interest of the Guarantor in HQSub; (iv) the bankruptcy, insolvencyreorganization, dissolutionarrangement, administrationadjustment, reorganization or liquidation of HQSubcomposition, the admission in writing by HQSub of its inability to pay its debts as they mature, or its making of a general assignment for the benefit ofof creditors, death, liquidation, winding up or dissolution of Borrower, Guarantor or any other guarantor of the Liabilities;
(b) Any limitation, discharge or cessation of the liability of Borrower, Guarantor or any other guarantor for the Liabilities due to any statute, regulation or rule of law, or entering into a composition any invalidity or arrangement with creditors unenforceability in whole or similar proceeding in part of the Loan Documents or any other guaranty of the Liabilities;
(whether c) Any merger, acquisition, consolidation or change in structure of Borrower, Guarantor or any other guarantor of the Liabilities; or any sale, lease, transfer or other disposition of any or all of the assets or shares of Borrower, Guarantor or any other guarantor of the Liabilities;
(d) Any assignment or other transfer, in whole or in part, of Agent's or any Lender's interests in and rights under the Credit Agreement and this Guaranty, including, without limitation, Agent's right to receive payment of the Liabilities and the Guaranty Obligations; or any assignment or other transfer, in whole or in part, of Agent's interests in and to any collateral security securing the Liabilities;
(e) Any claim, defense, counterclaim or setoff, other than that of prior payment or performance, that Borrower, Guarantor or any other guarantor of the Liabilities may have or assert, including, but not limited to, any defense of incapacity or lack of corporate or other authority to execute any documents relating to the Liabilities, the Guaranty Obligations or any collateral security for the Liabilities;
(f) Any cancellation, renunciation or surrender of any debt instrument evidencing the Liabilities, other than due to the complete prior and indefeasible payment or performance of such instrument;
(g) Agent's amendment, modification, renewal or extension of any documents or agreements relating to the Credit Agreement, the Liabilities, the Guaranty Obligations or any other collateral security for the Liabilities, or Agent's exchange, release or waiver of any collateral security for the Liabilities;
(h) Agent's exercise or non-exercise of any power, right or defence is available remedy with respect to the GuarantorLiabilities, HQSubthe Guaranty Obligations or any collateral security for the Liabilities, as debtorincluding, but not limited to, Agent's compromise, release, settlement or HQSub’s trustee waiver with or receiver)of Borrower, Guarantor or any other Person;
(i) Agent's vote, claim, distribution, election, acceptance, action or inaction in any bankruptcy case related to the Liabilities, the Guaranty Obligations or any collateral security for the Liabilities; and
(vj) Any impairment or invalidity of any collateral security for the Liabilities or any failure to give to the Guarantor notice perfect any of default in the making of any payment due and payable under this Guaranty Agent's liens thereon or the Agreement, or notice of any failure on the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy of the Guarantor against HQSub; (vii) subject to Section 2 of this Guaranty, any amendment, modification or extension of the Agreement; (viii) any assertion or claim that the automatic or other stay provided by Section 362 of the Bankruptcy Code or the equivalent legislation of any other country arising upon the voluntary or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Beneficiary to enforce any rights that the Beneficiary may have against the Guarantor; and (ix) any other circumstances whatsoever (with or without knowledge of the Beneficiary or the Guarantor) that constitutes, or might be construed to constitute, an equitable or legal discharge or defense of the Guarantor under this Guaranty, in bankruptcy or in any other instance, including all defenses of a guarantor or surety generally, other than full, final and indefeasible payment of the Guaranteed Obligations by the Guarantor and/or HQSubtherein.
Appears in 1 contract
Absolute Guaranty. To the fullest extent permitted by Applicable LawThe Guaranty Obligations shall remain in full force and effect without regard to, and except as limited by shall not be impaired or affected by, or be deemed to be satisfied by, nor shall any Guarantor or any Pledged Collateral be exonerated, discharged, or released by, any of the express terms hereoffollowing events:
(a) LLCP's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Obligations to LLCP or the Guaranty Obligations or any power, right, or remedy with respect to any of the Obligations to LLCP, the liability of Guaranty Obligations or the Guarantor under this Guaranty shall be absolutePledged Collateral, unconditional and irrevocable irrespective of, and the Guarantor waives any right or defense arising out ofincluding: (i) the lack any action or inaction of power LLCP to perfect, protect, or authority of the Guarantor to execute and deliver this Guaranty or of HQSub to execute and deliver the Agreementenforce any Lien upon any Pledged Collateral; (ii) any impairment or invalidity of the failure Pledged Collateral or any suspension of HQSub LLCP's right to exist as a legal entity enforce against the Company, any Guarantor or the consolidation or merger of HQSub with or into any other corporation or other entityguarantor of the Obligations to LLCP, any Obligations to LLCP, any Guaranty Obligations, or any Lien upon the sale, lease Pledged Collateral; or other disposition by HQSub of all or substantially all of its assets to any other business entity; (iii) any disposalchange in the time, transfermanner, or place of payment of, or in any other term of, any or all of the Obligations to LLCP, or any other amendment to, or waiver of, the April 1999 SPA, the April 1999 Note, this Agreement, the Pledge Agreements, or any other agreement or instrument governing or evidencing any of the Obligations to LLCP or the Guaranty Obligations;
(b) any insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or other disposition or trustee for all or any part of the direct Company's or indirect interest any Guarantor's assets or of the Guarantor in HQSub; (iv) assets of any other guarantor of the bankruptcyObligations to LLCP, insolvencyliquidation, dissolution, administration, reorganization or liquidation of HQSub, the admission in writing by HQSub of its inability to pay its debts as they maturewinding-up, or its making dissolution of a general assignment for the benefit ofCompany, or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the any Guarantor, HQSub, as debtor, or HQSub’s trustee or receiver); (v) any failure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreement, or notice of any failure on the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy guarantor of the Guarantor against HQSubObligations;
(c) any limitation, discharge, cessation, or partial satisfaction of the Obligations to LLCP, the Guaranty Obligations, or the obligations of any other guarantor of the Obligations to LLCP, whether by operation of any statute, regulation, or rule of law, or otherwise (but other than full satisfaction), regardless of the intervention or omission of LLCP, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the April 1999 SPA, the April 1999 Note, this Agreement, the Pledge Agreements, or any other document evidencing any Obligations to LLCP or Guaranty Obligations;
(d) any merger, acquisition, consolidation or change in structure of the Company, any Guarantor, or any other guarantor of the Obligations to LLCP; or any sale, lease, transfer, or other disposition of any or all the assets or shares of the Company, any Guarantor, or any other guarantor of the Obligations to LLCP;
(viie) subject to Section 2 any assignment or other transfer, in whole or in part, of LLCP's interest in and rights under the April 1999 SPA, April 1999 Note, this Agreement or the Pledge Agreements, including this Guaranty, or of LLCP's interest in the Obligations to LLCP, the Guaranty Obligations, or the Pledged Collateral;
(f) any amendmentclaim, modification defense, counterclaim, or extension setoff, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision of the Agreement; Code requiring that the Pledged Collateral be disposed of in a commercially reasonable manner, which claim, defense counterclaim or setoff the Company, any Guarantor, or any other guarantor of the Obligations may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Obligations to LLCP, the Guaranty Obligations, the Pledged Collateral, or any other guaranty of the Obligations to LLCP;
(viiig) any assertion cancellation, renunciation, or claim that surrender of any pledge, guaranty, or any debt instrument evidencing the automatic or other stay provided by Section 362 of the Bankruptcy Code Obligations to LLCP or the equivalent legislation of Guaranty Obligations;
(h) LLCP's vote, claim, distribution, election, acceptance, action, or inaction in any other country arising upon bankruptcy or reorganization related to the voluntary Obligations to LLCP, the Guaranty Obligations, or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Beneficiary to enforce any rights that the Beneficiary may have against the Guarantor; and Collateral;
(ixi) any other circumstances whatsoever action or circumstance that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(with or without knowledge j) the fact that any of the Beneficiary Obligations to LLCP or the Guarantor) that constitutesGuaranty Obligations may become due or payable in connection with, or might by reason of, any agreement or transaction that may be construed to constituteillegal, an equitable invalid, or legal discharge or defense of the Guarantor under this Guaranty, unenforceable in bankruptcy whole or in any other instancepart, including all defenses of a guarantor or surety generallyit being agreed by each Guarantor that the Guaranty Obligations shall not be discharged until the Guaranty Termination Date (and then after the Guaranty Termination Date, other than full, final and indefeasible payment of the Guaranteed Guaranty Obligations by the Guarantor and/or HQSubshall be subject to reinstatement under Section 4.14).
Appears in 1 contract
Samples: Investment Agreement (Levine Leichtman Capital Partners Ii Lp)
Absolute Guaranty. To Guarantor agrees that the fullest extent permitted by Applicable Lawliability hereunder shall be the immediate, direct, and except as limited by primary obligation of Guarantor and shall not be contingent upon Lenders' or Agent's exercise or enforcement of any remedy they may have against Borrower or any other Person, or against the express terms hereofCollateral or any security for the Guaranty Obligations. Without limiting the generality of the foregoing, the liability Guaranty Obligations shall remain in full force and effect without regard to and shall not be impaired or affected by, nor shall Guarantor be exonerated or discharged by, any of the Guarantor under this Guaranty shall be absolutefollowing events:
6.1 Insolvency, unconditional and irrevocable irrespective of, and the Guarantor waives any right or defense arising out of: (i) the lack of power or authority of the Guarantor to execute and deliver this Guaranty or of HQSub to execute and deliver the Agreement; (ii) the failure of HQSub to exist as a legal entity or the consolidation or merger of HQSub with or into any other corporation or other entity, or the sale, lease or other disposition by HQSub of all or substantially all of its assets to any other business entity; (iii) any disposal, transfer, assignment or other disposition or all or any part of the direct or indirect interest of the Guarantor in HQSub; (iv) the bankruptcy, insolvencyreorganization, dissolutionarrangement, administrationadjustment, reorganization or liquidation of HQSubcomposition, the admission in writing by HQSub of its inability to pay its debts as they mature, or its making of a general assignment for the benefit ofof creditors, liquidation, winding up or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantordissolution of Borrower, HQSub, as debtor, or HQSub’s trustee or receiver); (v) any failure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreement, or notice of any failure on the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy guarantor of the Guarantor against HQSub; (vii) subject to Section 2 of this GuarantyLiabilities;
6.2 Any limitation, any amendmentdischarge, modification or extension cessation of the Agreement; (viii) liability of Borrower, Guarantor or any assertion other guarantor for the Liabilities due to any statute, regulation or claim that rule of law, or any invalidity or unenforceability in whole or in part of the automatic documents evidencing the Liabilities or any other guaranty of the Liabilities;
6.3 Any merger, acquisition, consolidation or change in structure of Borrower, Guarantor or any other guarantor of the Liabilities or any sale, lease, transfer or other stay provided by Section 362 disposition of any or all of the Bankruptcy Code assets or shares of Borrower, Guarantor or any other guarantor of the equivalent legislation Liabilities;
6.4 Any assignment or other transfer, in whole or in part, of any other country arising upon the voluntary Lender's or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Beneficiary to enforce any Agent's interests in and rights that the Beneficiary may have against the Guarantor; and (ix) any other circumstances whatsoever (with or without knowledge of the Beneficiary or the Guarantor) that constitutes, or might be construed to constitute, an equitable or legal discharge or defense of the Guarantor under this Guaranty, the Loan Agreement or any of the other Loan Documents, including, without limitation, any Lender's or Agent's right to receive payment of the Liabilities or the Guaranty Obligations, as the case may be, or any assignment or other transfer, in bankruptcy whole or in part, of Agent's interests in and to the Collateral or any other instancecollateral securing the Guaranty Obligations;
6.5 Any claim, including all defenses of a guarantor defense, counterclaim or surety generallysetoff, other than fullthat of prior performance, final and indefeasible payment that Borrower, Guarantor or any other guarantor of the Guaranteed Liabilities may have or assert, including, but not limited to, any defense of incapacity or lack of corporate or other authority to execute any documents relating to the Liabilities, the Collateral, the Guaranty Obligations by or any collateral securing the Guaranty Obligations;
6.6 Any Lender's or Agent's amendment, modification, renewal, extension, cancellation or surrender of any agreement, document or instrument relating to the Loan Agreement, the Liabilities, the Collateral, the Guaranty Obligations or any collateral securing the Guaranty Obligations, or any Lender's or Agent's exchange, release, or waiver of any Collateral or of any collateral securing the Guaranty Obligations;
6.7 Lenders' or Agent's exercise or nonexercise of any power, right or remedy with respect to the Liabilities, the Collateral, the Guaranty Obligations or any collateral securing the Guaranty Obligations, including, but not limited to, Lenders' or Agent's compromise, release, settlement or waiver with or of Borrower, Guarantor and/or HQSub.or any other Person;
Appears in 1 contract
Absolute Guaranty. To the fullest extent permitted by Applicable Law, and except as limited by the express terms hereof, the liability of the Guarantor under this This Guaranty shall be is an absolute, unconditional and irrevocable irrespective ofcontinuing guaranty of the full and punctual payment of the Guaranteed Obligations, and the Guarantor waives any right or defense arising out guarantees that the Guaranteed Obligations will be paid strictly in accordance with the provisions of this Guaranty, in every case irrespective of: :
(ia) the lack of power validity, legality, genuineness, regularity or authority enforceability of the Guarantor to execute and deliver Guaranteed Obligations, the Requirements Contract, the Note, or this Guaranty or any other agreement or instrument relating thereto or any collateral therefor;
(b) any bankruptcy or insolvency of HQSub to execute and deliver the Agreement; (ii) the failure of HQSub to exist as a legal entity MPC or any other person or the consolidation dissolution or merger liquidation of HQSub with MPC or into any other corporation person or other entitythe discharge of MPC’s or such person’s obligations in bankruptcy;
(c) any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of the terms or rights of OCP with respect to this Guaranty or the obligations guaranteed hereunder;
(d) any change in the term, manner or place of payment of, or the sale, lease or other disposition by HQSub of all or substantially all of its assets to any other business entity; (iii) any disposalterm of, transfer, assignment or other disposition or all or any part of the direct Guaranteed Obligations or indirect interest any amendment or waiver of or any consent to departure from any of the Guarantor in HQSub; Guaranteed Obligations;
(iv) the bankruptcy, insolvency, dissolution, administration, reorganization or liquidation of HQSub, the admission in writing by HQSub of its inability to pay its debts as they mature, or its making of a general assignment for the benefit of, or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor, HQSub, as debtor, or HQSub’s trustee or receiver); (ve) any failure to give obtain any authorization or approval from or other action by, or to notify or file with, any governmental authority required in Connection with the payment of such Guaranteed Obligations by the Guarantor;
(f) any change in the name, stock ownership, membership, constitution or place of formation of MPC, or the Guarantor, or any change of MPC, or the Guarantor notice into another form of default business entity;
(g) any termination of the legal existence of MPC or the Guarantor, or the termination of any legal obligation of MPC or the Guarantor to discharge the Guaranteed Obligations undertaken or purported to be undertaken by it or on its behalf (other than that the Guaranteed Obligations have been paid or performed in accordance with their terms);
(h) any inability to recover in full any of the moneys included in the making Guaranteed Obligations by operation of law or for any payment due and payable under this Guaranty or the Agreementother reason, or notice any impossibility or impracticality of any failure on performance, illegality, force majeure, action or nonaction of government, or other circumstance that might otherwise constitute a legal or equitable defense available to, or resulting in the part of HQSub to do any act discharge of, a surety or thing or to observe or perform any covenant, condition or agreement by it to be observed guarantor (other than that the Guaranteed Obligations have been paid or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guarantyin accordance with their terms); or
(vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy of the Guarantor against HQSub; (vii) subject to Section 2 of this Guaranty, any amendment, modification or extension of the Agreement; (viii) any assertion or claim that the automatic or other stay provided by Section 362 of the Bankruptcy Code or the equivalent legislation of any other country arising upon the voluntary or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Beneficiary to enforce any rights that the Beneficiary may have against the Guarantor; and (ixi) any other circumstances whatsoever (with circumstance, event or without knowledge of the Beneficiary happening whatsoever, whether foreseen or the Guarantor) unforeseen and whether similar or dissimilar to anything referred to above in this Section 3, that constitutes, or might be construed to constitute, an equitable or legal discharge of the MPC or defense the Guarantor with respect to the Guaranteed Obligations. This Guaranty is not conditioned upon any requirement that OCP first attempt to collect any of the Guaranteed Obligations from any other person or resort to any collateral held as security or any other means of obtaining payment of any of the Guaranteed Obligations. The obligations of the Guarantor under this Guaranty are independent of the obligations of MPC under the Requirements Contract and the Note, and a separate action or actions may be brought and prosecuted against the Guarantor to enforce this Guaranty, in bankruptcy irrespective of whether any action is brought against MPC or whether MPC is joined in any such action or actions. The Guarantor waives, to the fullest extent permitted by law, the benefit of any statute of limitations affecting its liability hereunder or enforcement thereof. Any payment by MPC or other instance, including all defenses circumstance which operates to toll the statute of a guarantor or surety generally, other than full, final and indefeasible payment limitations as to MPC shall operate to toll the statute of limitations as to the Guaranteed Obligations by the Guarantor and/or HQSub.Guarantor,
Appears in 1 contract
Absolute Guaranty. To the fullest extent permitted by Applicable Law, and except as limited by the express terms hereof, the liability of the Guarantor Guarantor's obligations under this Guaranty shall be absolute, unconditional and irrevocable irrespective ofcontinuing, and unconditional, shall remain in full force and effect until irrevocable payment in full of all of the Indemnity Obligations, and shall not be affected by any action taken or not taken by Purchaser, by any lack of prior enforcement or retention of any rights against Seller or Guarantor, by any illegality, unenforceability, or invalidity of the Indemnity Obligations or the Transaction Documents, by any other guaranty or other obligations, or by any other circumstance or condition (whether or not Guarantor waives or the Acquired Companies have any knowledge or notice thereof), including: (1) any termination, amendment, modification, or other change in, or supplement to, any of the Transaction Documents, or any furnishing or acceptance of additional security, or release of any security, for the obligations of Seller under the Transaction Documents; (2) any failure, omission, or delay on the part of any Person to conform or comply with any term of any Transaction Document; (3) any waiver of the payment, performance, or observance of any of the obligations, conditions, covenants, or agreements contained in any Transaction Document or any other waiver, consent, extension, indulgence, compromise, settlement, release, or other action or inaction under or in respect of any Transaction Document, or any exercise or non- exercise of any right or defense arising out of: (i) the lack remedy under any Transaction Document or any obligation or liability of power Purchaser or authority Seller, or any exercise or non-exercise of the Guarantor to execute and deliver this Guaranty any right, remedy, power, or privilege under or in respect of HQSub to execute and deliver the Agreementany Transaction Document or any such obligation or liability; (ii4) any extension of time for payment or performance of any Indemnity Obligation; (5) any failure, omission, or delay on the failure part of HQSub Purchaser to exist as a legal entity enforce, assert, or the consolidation exercise any right, power, or merger of HQSub remedy conferred on it in connection with any Transaction Document, or into any other corporation or other entity, or action on the sale, lease or other disposition by HQSub part of all or substantially all of its assets to any other business entityPurchaser; (iii7) any disposal, transfer, assignment voluntary or other disposition or all or any part of the direct or indirect interest of the Guarantor in HQSub; (iv) the involuntary bankruptcy, insolvency, dissolution, administration, reorganization or liquidation of HQSub, the admission in writing by HQSub of its inability to pay its debts as they mature, or its making of a general assignment for the benefit ofof creditors, or entering into a composition or arrangement with creditors receivership, conservatorship, custodianship, liquidation, marshalling of assets and liabilities, or similar proceeding with respect to Purchaser, Guarantor, or any other Person or any of their respective properties or creditors, or the disaffirmance in whole or in part of any of the Transaction Documents in any such proceeding, or any action taken by any trustee or receiver or by any court in any such proceeding; (whether 8) any limitation on Purchaser's liability or obligations (or the liabilities and obligations of any other Person) or any discharge, termination, cancellation, frustration, irregularity, invalidity, or unenforceability, in whole or in part, of any of the Transaction Documents; (9) any merger or consolidation of Purchaser into or with any other corporation, or any sale, lease, or other transfer of any of the assets of Purchaser to any other Person or any change in the ownership of Purchaser or in the control of Purchaser; (10) to the extent permitted by law, any release or discharge, by operation of law, of Guarantor from the performance or observance of any obligation, covenant, or agreement contained in this Guaranty; and (12) any other condition or circumstance which might otherwise constitute a legal or equitable discharge, release, or defense of a surety or guarantor, or which might otherwise limit recourse against Guarantor, including any discharge, release, defense, or limitation arising out of any laws of the United States of America or any state thereof or any other Government Authority having authority over the same which would exempt, modify, or delay the due or punctual payment and performance of the obligations of Guarantor hereunder. Subject to paragraph (e) below, the obligations of Guarantor hereunder are not dischargeable except by payment. No failure or delay in exercising any right under this Guaranty shall operate as a waiver thereof, nor shall any single or partial exercise of any such right preclude any other or defence is available to further exercise thereof or the Guarantor, HQSub, as debtor, or HQSub’s trustee or receiver); (v) any failure to give to the Guarantor notice of default in the making exercise of any payment due and payable other right of Seller under this Guaranty or the Agreement, or notice of any failure on the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy of the Guarantor against HQSub; (vii) subject to Section 2 of this Guaranty, any amendment, modification or extension of the Agreement; (viii) any assertion or claim that the automatic or other stay provided by Section 362 of the Bankruptcy Code or the equivalent legislation of any other country arising upon the voluntary or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Beneficiary to enforce any rights that the Beneficiary may have against the Guarantor; and (ix) any other circumstances whatsoever (with or without knowledge of the Beneficiary or the Guarantor) that constitutes, or might be construed to constitute, an equitable or legal discharge or defense of the Guarantor under this Guaranty, in bankruptcy or in any other instance, including all defenses of a guarantor or surety generally, other than full, final and indefeasible payment of the Guaranteed Obligations by the Guarantor and/or HQSubTransaction Documents.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Us 1 Industries Inc)
Absolute Guaranty. To the fullest extent permitted by Applicable Law, and except as limited by the express terms hereof, the liability of the Guarantor under this Guaranty shall be absolute, unconditional and irrevocable irrespective of, and the Guarantor waives any right or defense arising out of: (i) the lack of power or authority of the Guarantor to execute and deliver this Guaranty or of HQSub NPT to execute and deliver the Agreement; (ii) the failure of HQSub NPT to exist as a legal entity or the consolidation or merger of HQSub NPT with or into any other corporation or other entity, or the sale, lease or other disposition by HQSub NPT of all or substantially all of its assets to any other business entity; (iii) any disposal, transfer, assignment or other disposition or all or any part of the direct or indirect interest of the Guarantor in HQSubNPT; (iv) the bankruptcy, insolvency, dissolution, administration, reorganization reorganization, or liquidation of HQSubNPT, the admission in writing by HQSub NPT of its inability to pay its debts as they mature, or its making of a general assignment for the benefit of, or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor, HQSubNPT, as debtor, or HQSubNPT’s trustee or receiver); (v) any failure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreement, or notice of any failure on the part of HQSub NPT to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy of the 1014917.31-D.C. Server 1A - MSW Guarantor against HQSubNPT; (vii) subject to Section 2 of this Guaranty, any amendment, modification or extension of the Agreement; (viii) any assertion or claim that the automatic or other stay provided by Section 362 of the Bankruptcy Code or the equivalent legislation of any other country arising upon the voluntary or involuntary bankruptcy proceeding of HQSub NPT shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Beneficiary to enforce any rights that the Beneficiary may have against the Guarantor; and (ix) any other circumstances whatsoever (with or without knowledge of the Beneficiary or the Guarantor) that constitutes, or might be construed to constitute, an equitable or legal discharge or defense of the Guarantor under this Guaranty, in bankruptcy or in any other instance, including all defenses of a guarantor or surety generally, other than full, final and indefeasible payment of the Guaranteed Obligations by the Guarantor and/or HQSubNPT.
Appears in 1 contract
Samples: Transmission Service Agreement (Public Service Co of New Hampshire)
Absolute Guaranty. To the fullest extent permitted by Applicable LawThe Guaranty Obligations shall remain ----------------- in full force and effect without regard to, and except as limited shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantor be exonerated, discharged, or released (by the express terms hereof, the liability virtue of the Guarantor under this Guaranty shall be absoluteprovisions of Sections 2809, unconditional and irrevocable irrespective 2819, 2845, 2848, 2849 or 2850 of the California Civil Code or any other law, rule, arrangement or relationship) by, any of the following events:
(a) Lender's exercise or enforcement of, and or failure or delay in exercising or enforcing, legal proceedings to collect the Guarantor waives Obligations or the Guaranty Obligations or any right power, right, or defense arising out ofremedy with respect to any of the Obligations or the Guaranty Obligations, including: (i) the lack any suspension of power Lender's right to enforce, against Borrower or authority of the Guarantor to execute and deliver this Guarantor, any Obligations or any Guaranty Obligations; or of HQSub to execute and deliver the Agreement; (ii) any change in the failure time, manner, or place of HQSub to exist as a legal entity payment of, or in any other term of, any or all of the Obligation, or any other amendment to, or waiver of, the Note or any other agreement or instrument governing or evidencing any of the Obligations or the consolidation or merger of HQSub with or into any other corporation or other entity, or the sale, lease or other disposition by HQSub of all or substantially all of its assets to any other business entity; Guaranty Obligations;
(iiib) any disposalinsolvency, transferbankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or other disposition or trustee for all or any part of the direct Borrower's or indirect interest Guarantor's assets, liquidation, winding-up, or dissolution of Borrower or Guarantor;
(c) any limitation, discharge, cessation, or partial satisfaction of the Guarantor Obligations or the Guaranty Obligations, whether by operation of any statute, regulation or rule of law, or otherwise (but other than full satisfaction by timely payment of all obligations guaranteed hereby) regardless of the intervention or omission of Lender, or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in HQSub; (iv) the bankruptcy, insolvency, dissolution, administration, reorganization whole or liquidation of HQSubin part, the admission in writing by HQSub of its inability to pay its debts as they matureNote, or its making of a general assignment for the benefit of, or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor, HQSub, as debtor, or HQSub’s trustee or receiver); (v) any failure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreement, or notice of any failure on the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right document evidencing any Obligations or remedy Guaranty Obligations;
(d) any merger, acquisition, consolidation or change in structure of Borrower, or Guarantor; or any sale, lease, transfer, or other disposition of any or all of the Guarantor against HQSub; assets or shares of Borrower or Guarantor;
(viie) subject to Section 2 any assignment or other transfer, in whole or in part, of Lender's interest in and rights under the Note, including this Guaranty, any amendment, modification or extension of Lender's interest in the Agreement; Obligations or the Guaranty Obligations;
(viiif) any assertion claim, defense, counterclaim, or claim that the automatic setoff including, but not limited to, any defense or incapacity, disability, or lack of corporate or other stay provided by Section 362 of authority to execute any documents relating to the Bankruptcy Code Obligations or the equivalent legislation Guaranty Obligations;
(g) any cancellation, renunciation, or surrender of any other country arising upon security or instrument at any time evidencing the voluntary Obligations or involuntary the Guaranty Obligations;
(h) Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy proceeding of HQSub shall operate or be interpreted reorganization case related to stay, interdict, condition, reduce the Obligations or inhibit the ability of the Beneficiary to enforce any rights that the Beneficiary may have against the Guarantor; and Guaranty Obligations;
(ixi) any other action or circumstances whatsoever that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(j) the fact that any of the Obligations or the Guaranty Obligations may become due or payable in connection with or without knowledge by reason of the Beneficiary any agreement or the Guarantor) transaction that constitutesmay be illegal, invalid, or might be construed to constitute, an equitable or legal discharge or defense of the Guarantor under this Guaranty, unenforceable in bankruptcy whole or in any other instancepart, including all defenses of a guarantor or surety generallyit being agreed by each Guarantor that the Guaranty Obligations shall not be discharged until the Guaranty Termination Date (and then after the Guaranty Termination Date, other than full, final and indefeasible payment of the Guaranteed Guaranty Obligations by the Guarantor and/or HQSubshall be subject to reinstatement under Section 5).
Appears in 1 contract
Absolute Guaranty. To The Guaranty Liabilities are the fullest extent permitted by Applicable Lawimmediate, direct, primary, and except as limited by absolute obligations of Guarantors, shall not be subject to any condition precedent, and are independent of and not co-extensive with the express terms hereofObligations. The Guaranty Liabilities shall remain in full force and effect without regard to, and shall not be impaired or affected by, or be deemed to be satisfied by, nor shall Guarantors or the Collateral be exonerated, discharged, or released by, any of the following events:
(a) Agent's or any Bank's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Obligations or any power, right, or remedy with respect to any of the Obligations, the liability of Collateral, or the Guarantor under this Guaranty shall be absolute, unconditional and irrevocable irrespective of, and the Guarantor waives any right or defense arising out ofLiabilities including: (i) the lack any action or inaction of power Agent or authority of the Guarantor any Bank to execute and deliver this Guaranty perfect, protect, or of HQSub to execute and deliver the Agreementenforce any security interest in any Collateral; (ii) any impairment or invalidity of the failure Collateral or any suspension of HQSub Agent's or any Bank's right to exist as a legal entity enforce against Borrower or the consolidation or merger of HQSub with or into any other corporation or guarantor of the Obligations, any Obligations, any Guaranty Liabilities, any other entityobligations, or any security interest in or lien upon the sale, lease Collateral; or other disposition by HQSub of all or substantially all of its assets to any other business entity; (iii) any disposalchange in the time, transfermanner, or place of payment of, or in any other term of, any or all of the Obligations or the Guaranty Liabilities, or any other amendment to or waiver of the Revolving Credit Agreement, any other Related Document, or any other agreement or instrument governing or evidencing any of the Obligations or the Guaranty Liabilities;
(b) insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or other disposition or trustee for all or any part of the direct Borrower's or indirect interest Guarantors' assets or of the Guarantor in HQSub; (iv) assets of any other guarantor of the bankruptcyObligations, insolvencyliquidation, dissolution, administration, reorganization or liquidation of HQSub, the admission in writing by HQSub of its inability to pay its debts as they maturewinding-up, or its making dissolution of a general assignment for the benefit of, Borrower or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor, HQSub, as debtor, or HQSub’s trustee or receiver); (v) any failure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreement, or notice of any failure on the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation Guarantors or any other right or remedy guarantor of the Guarantor against HQSub; Obligations;
(viic) subject any limitation, discharge, cessation, or partial satisfaction of the Obligations, of any Guaranty Liabilities, or of the obligations of any other guarantor of the Obligations, whether by operation of any statute, regulation, or rule of law, or otherwise, regardless of the intervention or omission of Agent or any Bank, or any invalidity, voidability, unenforceability, or irregularity, or future change to Section 2 of or amendment of, in whole or in part, the Revolving Credit Agreement, this Guaranty, any amendmentother Related Document, modification or extension any other document evidencing any Obligations;
(d) any merger, acquisition, consolidation or change in structure of Borrower or Guarantor or any guarantor of the AgreementObligations; or any sale, lease, transfer, or other disposition of any or all of the assets or shares of Borrower or Guarantors or any other guarantor of the Obligations;
(viiie) any assertion assignment or claim other transfer, in whole or in part, of Agent's or any Bank's interest in and rights under the Revolving Credit Agreement or any other Related Document, including this Guaranty, or of Agent's or any Bank's interest in the Obligations, the Guaranty Liabilities, or the Collateral;
(f) any claim, defense, counterclaim, or set-off, other than (i) any defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the automatic Collateral be disposed of in a commercially reasonable manner, which Borrower, Guarantors, or any other guarantor of the Obligations may have or assert, including any defense of incapacity, disability, or lack of corporate or other stay provided by Section 362 authority to execute any documents relating to the Obligations, the Guaranty Liabilities, the Collateral, or any other guaranty of the Bankruptcy Code Obligations;
(g) any cancellation, renunciation, or surrender of any pledge, guaranty, or any debt instrument evidencing the Obligations or the equivalent legislation of Guaranty Liabilities;
(h) Agent's or any other country Bank's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Obligations, or the Guaranty Liabilities;
(i) Obligations arising upon under the voluntary or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability Revolving Credit Agreement as a result of the Beneficiary Bonding Company's borrowing Revolving Loans pursuant to enforce any its rights that to do so, for the Beneficiary may have against account of the Guarantor; and Borrower, under Section 2.22 of the Revolving Credit Agreement;
(ixj) any other action or circumstances whatsoever that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor; or
(k) the fact that any of the Obligations or the Guaranty Liabilities may become due or payable in connection with or without knowledge by reason of the Beneficiary any agreement or the Guarantor) transaction that constitutesmay be illegal, invalid, or might be construed to constitute, an equitable or legal discharge or defense of the Guarantor under this Guaranty, unenforceable in bankruptcy whole or in any other instance, including all defenses of a guarantor or surety generally, other than full, final and indefeasible payment of part; it being agreed by Guarantors that the Guaranteed Obligations by the Guarantor and/or HQSubGuaranty Liabilities shall not be discharged.
Appears in 1 contract
Samples: Guaranty (Morrison Knudsen Corp)
Absolute Guaranty. To Guarantor agrees that the fullest extent permitted by Applicable Lawliability hereunder shall be the immediate, direct, and except as limited by primary obligation of Guarantor, and shall not be contingent upon the express terms hereofLenders’ or the Administrative Agent’s exercise or enforcement of any remedy they or it may have against either of the Borrower or any other Person or any other guarantor of the Obligations, or against the Collateral or any other collateral securing the Guaranty Obligations. Without limiting the generality of the foregoing, the Guaranty Obligations shall remain in full force and effect without regard to and shall not be impaired or affected by, nor shall Guarantor be exonerated or discharged by, any of the following events:
(a) Insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, liquidation, winding up or dissolution of the Borrower, Guarantor or any other guarantor of the Obligations;
(b) Any limitation, discharge, or cessation of the liability of the Guarantor under this Guaranty shall be absolute, unconditional and irrevocable irrespective of, and Borrower (other than by the Guarantor waives any right or defense arising out of: (i) the lack of power or authority final payment in full in cash of the Obligations pursuant to the Credit Agreement), Guarantor or any other guarantor of the Obligations due to execute and deliver this Guaranty any regulation, code, ordinance, order, decree, judgment, injunction, notice or binding agreement issued, promulgated or entered into by any Governmental Authority or arbitrator, or any invalidity or unenforceability in whole or in part of HQSub to execute and deliver the Agreement; Loan Documents or any other documents evidencing the Obligations or any other guaranty of the Obligations;
(iic) the failure of HQSub to exist as a legal entity or the Any merger, acquisition, consolidation or merger change in structure of HQSub with the Borrower, Guarantor or into any other corporation guarantor of the Obligations or other entity, or the any sale, lease lease, transfer or other disposition by HQSub of all any or substantially all of its the assets to or equity interests of the Borrower, Guarantor or any other business entity; guarantor of the Obligations;
(iiid) any disposal, transfer, Any assignment or other disposition transfer, in whole or all or any part of the direct or indirect interest of the Guarantor in HQSub; (iv) the bankruptcypart, insolvency, dissolution, administration, reorganization or liquidation of HQSub, the admission in writing by HQSub of its inability to pay its debts as they mature, or its making of a general assignment for the benefit of, or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor, HQSub, as debtor, or HQSub’s trustee or receiver); (v) any failure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty Lender’s or the Agreement, or notice of any failure on the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy of the Guarantor against HQSub; (vii) subject to Section 2 of this Guaranty, any amendment, modification or extension of the Agreement; (viii) any assertion or claim that the automatic or other stay provided by Section 362 of the Bankruptcy Code or the equivalent legislation of any other country arising upon the voluntary or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Beneficiary to enforce any Administrative Agent’s interests in and rights that the Beneficiary may have against the Guarantor; and (ix) any other circumstances whatsoever (with or without knowledge of the Beneficiary or the Guarantor) that constitutes, or might be construed to constitute, an equitable or legal discharge or defense of the Guarantor under this Guaranty, in bankruptcy the Credit Agreement or in any of the other instanceLoan Documents, including all defenses of a guarantor or surety generally, other than full, final and indefeasible the right to receive payment of the Guaranteed Obligations or the Guaranty Obligations, as the case may be, or any assignment or other transfer, in whole or in part, of any Lender’s or the Administrative Agent’s Lien on or in the Collateral or any other collateral securing the Guaranty Obligations;
(e) Any claim, defense, counterclaim or setoff (other than by the final payment in full in cash of the Obligations pursuant to the Credit Agreement) that the Borrower, Guarantor and/or HQSubor any other guarantor of the Obligations may have or assert, including, but not limited to, any defense of incapacity or lack of authority to execute any documents relating to the Obligations, the Guaranty Obligations, the Collateral, or any other collateral securing the Guaranty Obligations;
(f) Any amendment, modification, renewal, extension, cancellation or surrender of any Loan Document or agreement, document or instrument relating to the Credit Agreement, the Obligations, the Collateral or the Guaranty Obligations or any exchange, release, or waiver of any Collateral or of any other collateral securing the Guaranty Obligations;
(g) Any Lender’s or the Administrative Agent’s exercise or nonexercise of any power, right or remedy with respect to the Obligations, the Collateral, the Guaranty Obligations or any other collateral securing the Guaranty Obligations, including, but not limited to, the compromise, release, settlement or waiver with or of the Borrower, Guarantor or any other Person;
(h) Any Lender’s or the Administrative Agent’s vote, claim, distribution, election, acceptance, action or inaction in any bankruptcy case or similar insolvency proceeding related to the Obligations, the Collateral, the Guaranty Obligations or any other collateral securing the Guaranty Obligations; and
(i) Any impairment or invalidity of the Collateral, or any other collateral securing the Guaranty Obligations or any failure to perfect any of the Administrative Agent’s or any Lender’s Liens thereon or therein.
Appears in 1 contract
Absolute Guaranty. To the fullest extent permitted by Applicable LawThe Guaranty Obligations shall remain in full ----------------- force and effect without regard to, and except as limited by shall not be impaired or affected by, or be deemed to be satisfied by, and no Guarantor or any Collateral shall be exonerated, discharged, or released by, any of the express terms hereoffollowing events:
(a) Bank's exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Obligations or the Guaranty Obligations or any power, right, or remedy with respect to any of the Obligations, the liability of Guaranty Obligations or the Guarantor under this Guaranty shall be absoluteCollateral, unconditional and irrevocable irrespective of, and the Guarantor waives any right or defense arising out ofincluding: (iI) the lack any action or inaction of power Bank to perfect, protect, or authority of the Guarantor to execute and deliver this Guaranty or of HQSub to execute and deliver the Agreementenforce any Lien upon any Collateral; (ii) any impairment or invalidity of the failure Collateral or any suspension of HQSub Bank's right to exist as a legal entity enforce against Borrower, any Guarantor, or the consolidation or merger of HQSub with or into any other corporation or other entityguarantor of the Obligations, any Obligations, any Guaranty Obligations, or any Lien upon the sale, lease Collateral; or other disposition by HQSub of all or substantially all of its assets to any other business entity; (iii) any disposalchange in the time, transfermanner, or place of payment of, or in any other term of, any or all of the Obligations or the Guaranty Obligations, or any other amendment to, or waiver of, the Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Obligations or the Guaranty Obligations;
(b) insolvency, bankruptcy, reorganization, arrangement, adjustment, composition, assignment for the benefit of creditors, appointment of a receiver or other disposition or trustee for all or any part of the direct Borrower's or indirect interest any Guarantor's assets or of the Guarantor in HQSub; (iv) assets of any other guarantor of the bankruptcyObligations, insolvencyliquidation, dissolution, administration, reorganization or liquidation of HQSub, the admission in writing by HQSub of its inability to pay its debts as they maturewinding-up, or its making dissolution of a general assignment for the benefit ofBorrower, or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the any Guarantor, HQSub, as debtor, or HQSub’s trustee or receiver); (v) any failure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreement, or notice of any failure on the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy guarantor of the Guarantor against HQSub; Obligations;
(viic) subject any limitation, discharge, cessation, or partial satisfaction of the Obligations, the Guaranty Obligations, or the obligations of any other guarantor of the Obligations (except as provided in subparagraphs f(i) or (ii) of this Section 2.2), whether by operation of any statute, regulation, or rule ----------- of law, or otherwise, regardless of the intervention or omission of Bank, or any invalidity, voidability, unenforceability, or irregularity, or future change to Section 2 of or amendment of, in whole or in part, the Loan Agreement, this Guaranty, any amendmentother Loan Document, modification or extension any other document evidencing any Obligations or Guaranty Obligations;
(i) any merger, acquisition, consolidation or change in structure of Borrower, any Guarantor, or any other guarantor of the AgreementObligations; (viiiii) any assertion sale, lease, transfer, or claim other disposition of any or all of the assets or Stock of Borrower, any Guarantor, or any other guarantor of the Obligations, including any transfer by Borrower of all or any part of any Collateral in which Bank has been granted a Lien pursuant to the Loan Documents; or (iii) termination of Borrower's existence for any reason;
(e) any assignment or other transfer, in whole or in part, of Bank's interest in and rights under the Loan Agreement or any other Loan Document, including this Guaranty, or of Bank's interest in the Obligations, the Guaranty Obligations, or the Collateral;
(f) any claim, defense, counterclaim, or setoff that Borrower, any Guarantor, or any other guarantor of the Obligations may have or assert, including any defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the Obligations, the Guaranty Obligations, the Collateral, or any other guaranty of the Obligations, other than (i) upon the occurrence of the Guaranty Termination Date, the defense of prior performance or (ii) any defense based on any applicable provision of the UCC requiring that the automatic Collateral be disposed of in a commercially reasonable manner;
(g) any cancellation, renunciation, or other stay provided by Section 362 surrender of any pledge, guaranty, or any debt instrument evidencing the Bankruptcy Code Obligations or the equivalent legislation of Guaranty Obligations;
(h) Bank's vote, claim, distribution, election, acceptance, action, or inaction in any other country arising upon bankruptcy or reorganization case related to the voluntary Obligations, the Guaranty Obligations, or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Beneficiary to enforce any rights that the Beneficiary may have against the Guarantor; and Collateral;
(ixi) any other circumstances whatsoever action or circumstance that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor (except as provided in subparagraphs f(i) or (ii) of this Section 2.2); or -----------
(j) the fact that any of the Obligations or the Guaranty Obligations may become due or payable in connection with or without knowledge by reason of the Beneficiary any agreement or the Guarantor) transaction that constitutesmay be illegal, invalid, or might be construed to constitute, an equitable or legal discharge or defense of the Guarantor under this Guaranty, unenforceable in bankruptcy whole or in any other instance, including all defenses of a guarantor or surety generally, other than full, final and indefeasible payment of part; it being agreed by each Guarantor that the Guaranteed Guaranty Obligations by shall not be discharged until the Guarantor and/or HQSubGuaranty Termination Date.
Appears in 1 contract
Samples: Continuing Guaranty (Polyphase Corp)
Absolute Guaranty. To the fullest extent permitted by Applicable Law, and except as limited by the express terms hereof, the liability of the Guarantor under this Guaranty shall be absolute, unconditional and irrevocable irrespective of, and the Guarantor waives any right or defense arising out of: (i) the lack of power or authority of the Guarantor to execute and deliver this Guaranty or of HQSub to execute and deliver the Agreement; (ii) the failure of 1014917.31-D.C. Server 1A - MSW HQSub to exist as a legal entity or the consolidation or merger of HQSub with or into any other corporation or other entity, or the sale, lease or other disposition by HQSub of all or substantially all of its assets to any other business entity; (iii) any disposal, transfer, assignment or other disposition or all or any part of the direct or indirect interest of the Guarantor in HQSub; (iv) the bankruptcy, insolvency, dissolution, administration, reorganization or liquidation of HQSub, the admission in writing by HQSub of its inability to pay its debts as they mature, or its making of a general assignment for the benefit of, or entering into a composition or arrangement with creditors or similar proceeding (whether such right or defence is available to the Guarantor, HQSub, as debtor, or HQSub’s trustee or receiver); (v) any failure to give to the Guarantor notice of default in the making of any payment due and payable under this Guaranty or the Agreement, or notice of any failure on the part of HQSub to do any act or thing or to observe or perform any covenant, condition or agreement by it to be observed or performed under the Agreement, except for the obligations to make demand for payment as set forth under Section 1 of this Guaranty; (vi) the absence, impairment or loss of any right of reimbursement, contribution or subrogation or any other right or remedy of the Guarantor against HQSub; (vii) subject to Section 2 of this Guaranty, any amendment, modification or extension of the Agreement; (viii) any assertion or claim that the automatic or other stay provided by Section 362 of the Bankruptcy Code or the equivalent legislation of any other country arising upon the voluntary or involuntary bankruptcy proceeding of HQSub shall operate or be interpreted to stay, interdict, condition, reduce or inhibit the ability of the Beneficiary to enforce any rights that the Beneficiary may have against the Guarantor; and (ix) any other circumstances whatsoever (with or without knowledge of the Beneficiary or the Guarantor) that constitutes, or might be construed to constitute, an equitable or legal discharge or defense of the Guarantor under this Guaranty, in bankruptcy or in any other instance, including all defenses of a guarantor or surety generally, other than full, final and indefeasible payment of the Guaranteed Obligations by the Guarantor and/or HQSub.
Appears in 1 contract
Samples: Transmission Service Agreement (Public Service Co of New Hampshire)
