Absolute Guaranty. Guarantor's liabilities and obligations under ------------------ this Guaranty shall be absolute and unconditional 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 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 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 remedy with respect to any or all of the 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 ensure compliance with any term or provision of the Credit Agreement or any other Loan Document, (ii) to take or prosecute or properly or diligently take or prosecute any action for the collection of any or all of the Guaranteed Obligations against Borrower, Guarantor or any other guarantor of any or all of the Guaranteed Obligations and/or any other Person, (iii) to foreclose or prosecute or properly or diligently foreclose or prosecute any action in connection with any agreement, document or instrument or arrangement evidencing, securing or otherwise affecting all or any part of the Guaranteed Obligations, including, without limitation, any failure to conduct a commercially reasonable foreclosure sale, or (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 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) the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, (iv) the officers, directors, partners, trustees or representatives creating the Guaranteed Obligations acted in excess of their authority or lacked legal capacity, (v) the Credit Agreement, any Note or any other Loan Document evidencing the Guaranteed Obligations has been forged or otherwise is irregular or is not genuine or authentic, or (vi) failure to comply with the statute of frauds; (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 of (i)the acceptance of this Guaranty, (ii) the making of Loans by any Lender in reliance on this Guaranty, (iii) the failure of Borrower to make any payment due by Borrower to Administrative Agent or any Lender, or (iv) any information regarding the financial condition or prospects of Borrower; (m) any existing or future offset, claim or defense of Borrower against Administrative Agent or any Lender or against payment of all or any part of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise; (n) any full or partial release of the liability of Borrower, any guarantor of all or any part of the 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 pay the Guaranteed Obligations in full without assistance or support, whether from Borrower, any other guarantor or any other Person; or (o) any other action taken or omitted to be taken with respect to any of the Credit Agreement, any Note or any other Loan Document, the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay all or any part of the 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 the amounts and at the times required or provided by or in connection with the Credit Agreement, any Notes or any other Loan Document, Guarantor is absolutely liable to make such payments and to confer such benefits on Lenders on a timely basis.
Appears in 1 contract
Absolute Guaranty. Guarantor's liabilities and obligations under ------------------ this Guaranty shall be absolute and unconditional 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 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 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 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 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 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 The entering into, delivery of, modification of, amendment to or waiver of compliance with the Credit Agreement, any the 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 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 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 Any neglect, delay, omission, failure or refusal of Administrative Agent or any Lender to (i) to exercise or properly or diligently exercise any right or remedy with respect to any or all of the Guaranteed Obligations or the collection thereof or any collateral, security or guaranty therefor, whether under the Credit Agreement, any the Note or any other Loan Document or otherwise, including, without limitation, to ensure compliance with any term or provision of the Credit Agreement or any other Loan Document, (ii) to take or prosecute or properly or diligently take or prosecute any action for the collection of any or all of the Guaranteed Obligations against Borrower, Guarantor or any other guarantor of any or all of the Guaranteed Obligations and/or any other Person, (iii) to foreclose or prosecute or properly or diligently foreclose or prosecute any action in connection with any agreement, document or instrument or arrangement evidencing, securing or otherwise affecting all or any part of the Guaranteed Obligations, including, without limitation, any failure to conduct a commercially reasonable foreclosure sale, or (iv) to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations;
(h) any 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 Obligationsto, (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, (iiii) 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, (ivii) any renewal, extension or assignment of the Guaranteed Obligations or any part thereof, (viiii) 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 (viiv) 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 connection with the Guaranteed Obligations;
(i) the The unenforceability, illegality or uncollectibility of all or any part of the Guaranteed Obligations against Borrower by reason of (i) failure the fact that the interest contracted for, charged, collected or received in respect of considerationthe Guaranteed Obligations exceeds the amount permitted by law, (ii) breach of warranty, (iii) the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxxvirex, (iv) the xxe officers, directors, partners, trustees or representatives creating the Guaranteed Obligations acted in excess of their authority or lacked legal capacityauthority, (v) the Credit Loan Agreement, any the Note or any other Loan Document evidencing the Guaranteed Obligations has been forged or otherwise is irregular or is not genuine or authentic, authentic or (vi) failure to comply with expiration of the applicable statute of fraudslimitations of the Guaranteed Obligations;
(j) any 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 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 Any failure of Administrative Agent or any Lender to notify Guarantor of (i)the the acceptance of this Guaranty, (ii) Guaranty or of the making of Loans by any Lender in reliance on this Guaranty, (iii) Guaranty or of the failure of Borrower to make any payment due by Borrower to Administrative Agent or any Lender, or (iv) any information regarding the financial condition or prospects of Borrower;
(m) any Any existing or future offset, claim or defense of Borrower against Administrative Agent or any Lender or against payment of all or any part of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise;
(n) any Any full or partial release of the liability of Borrower, any guarantor of all or any part of the 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 pay the Guaranteed Obligations in full without assistance or support, whether from Borrower, any other guarantor or any other Person; or
(o) any Any other action taken or omitted to be taken with respect to any of the Credit Agreement, any the Note or any other Loan Document, the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay all or any part of the 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 the amounts and at the times required or provided by or in connection with the Credit Agreement, any Notes the Note or any other Loan Document, Guarantor is absolutely liable to make such payments and to confer such benefits on Lenders on a timely basis.
Appears in 1 contract
Absolute Guaranty. Guarantor's liabilities and obligations under ------------------ this Guaranty shall be absolute and unconditional 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 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 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 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 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 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 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 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 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, Any 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 Any neglect, delay, omission, failure or refusal of Administrative Agent or any Lender to (i) to exercise or properly or diligently exercise any right or remedy with respect to any or all of the 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 ensure compliance with any term or provision of the Credit Agreement or any other Loan Document, (ii) to take or prosecute or properly or diligently take or prosecute any action for the collection of any or all of the Guaranteed Obligations against Borrower, Guarantor or any other guarantor of any or all of the Guaranteed Obligations and/or any other Person, (iii) to foreclose or prosecute or properly or diligently foreclose or prosecute any action in connection with any agreement, document or instrument or arrangement evidencing, securing or otherwise affecting all or any part of the Guaranteed Obligations, including, without limitation, any failure to conduct a commercially reasonable foreclosure sale, or (iv) to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations;
(h) any 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 Obligationsto, (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, (iiii) 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, (ivii) any renewal, extension or assignment of the Guaranteed Obligations or any part thereof, (viiii) 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 connection with the Guaranteed Obligations;commercially
(i) the The unenforceability, illegality or uncollectibility of all or any part of the Guaranteed Obligations against Borrower by reason of (i) failure the fact that the interest contracted for, charged, collected or received in respect of considerationthe Guaranteed Obligations exceeds the maximum amount permitted by law, (ii) breach of warranty, (iii) the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxxvirex, (iv) the xxe officers, directors, partners, trustees or representatives creating the Guaranteed Obligations acted in excess of their authority or lacked legal capacityauthority, (v) the Credit Loan Agreement, any Note Note, or any other Loan Document evidencing the Guaranteed Obligations has been forged or otherwise is irregular or is not genuine or authentic, or (vi) failure to comply with expiration of the applicable statute of fraudslimitations with respect to the Guaranteed Obligations;
(j) any 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 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 Any failure of Administrative Agent or any Lender to notify Guarantor of (i)the the acceptance of this Guaranty, (ii) Guaranty or of the making funding of Loans Advances by any Lender in reliance on this Guaranty, (iii) Guaranty or of the failure of Borrower to make any payment due by Borrower to Administrative Agent or any Lender, or (iv) any information regarding the financial condition or prospects of Borrower;
(m) any Any existing or future offset, claim or defense of Borrower against Administrative Agent or any Lender or against payment of all or any part of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise;
(n) any Any full or partial release of the liability of Borrower, any guarantor of all or any part of the 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 pay the Guaranteed Obligations in full without assistance or support, whether from Borrower, any other guarantor or any other Person; or
(o) any Any other action taken or omitted to be taken with respect to any of the Credit Agreement, any Note or any other Loan Document, the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay all or any part of the 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 the Lenders (or any of them) have advanced funds or extended credit to Borrower and do not receive payments or benefits thereon in the amounts and at the times required or provided by or in connection with the Credit Agreement, any Notes or any other Loan Document, Guarantor is absolutely liable to make such payments and to confer such benefits on the Lenders on a timely basis.
Appears in 1 contract
Absolute Guaranty. Guarantor's liabilities and obligations under ------------------ this Guaranty shall be absolute and unconditional 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 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 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 any indebtedness, liability or obligation of Guarantor for payment of the Guaranteed Obligations, are 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 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 Loan 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 Administrative Agent or any Lender to Borrower Borrower, Guarantor or Guarantorany other Loan Party;
(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 remedy with respect to any or all of the 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 ensure compliance with any term or provision of the Credit Agreement or any other Loan Document, (ii) to take or prosecute or properly or diligently take or prosecute any action for the collection of any or all of the Guaranteed Obligations against Borrower, Guarantor or any other guarantor of any or all of the Guaranteed Obligations and/or any other Loan Party or Person, (iii) to foreclose or prosecute or properly or diligently foreclose or prosecute any action in connection with any agreement, document or instrument or arrangement evidencing, securing or otherwise affecting all or any part of the Guaranteed Obligations, including, without limitation, any failure to conduct a commercially reasonable foreclosure sale, or (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 Borrower, Guarantor and/or Guarantor any other Loan Party of, or obtain the consent of Borrower Borrower, Guarantor and/or Guarantor any other Loan Party with respect to,(ito, (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 DocumentDocuments, (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, (viv) 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 BorrowerBorrower or any other Loan Party, 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 Borrower, Guarantor or Guarantor any other Loan Party any notice of any kind or to obtain Borrower's, Guarantor's or Guarantorany other Loan Party's consent under any circumstances whatsoever with respect to or in connection with the Guaranteed Obligations;
(i) the unenforceability, illegality or uncollectibility of all or any part of the Guaranteed Obligations against Borrower or any other Loan Party by reason of (i) failure of consideration, (ii) breach of warranty, (iii) fraud, (iv) the fact that the interest contracted for, charged, collected or received in respect of the Guaranteed Obligations exceeds the amount permitted by law, (v) the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, (ivvi) the officers, directors, partners, trustees or representatives creating the Guaranteed Obligations acted in excess of their authority or lacked legal capacity, (vvii) the Credit Agreement, any Note or any other Loan Document evidencing the Guaranteed Obligations has been forged or otherwise is irregular or is not genuine or authentic, or (viviii) 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 or any other Loan Party 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 Loan Party or any other Person;
(k) any merger, reorganization, consolidation or dissolution of BorrowerBorrower or any other Loan Party, any sale, lease or transfer of any or all of the assets of BorrowerBorrower or any other Loan 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 BorrowerBorrower or any other Loan Party;
(l1) any failure of Administrative Agent or any Lender to notify Guarantor of (i)the i) the acceptance of this Guaranty, (ii) the making of Loans by any Lender in reliance on this Guaranty, (iii) the failure of Borrower or any other Loan Party to make any payment due by Borrower or any other Loan Party to Administrative Agent or any Lender, or (iv) any information regarding the financial condition or prospects of BorrowerBorrower or any other Loan Party;
(m) any existing or future offset, claim or defense of Borrower or any other Loan Party against Administrative Agent or any Lender or against payment of all or any part of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise;
(n) any full or partial release of the liability of BorrowerBorrower or any other Loan Party, any guarantor of all or any part of the 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 pay the Guaranteed Obligations in full without assistance or support, whether from BorrowerBorrower or any other Loan Party, any other guarantor or any other Person; or
(o) any other action taken or omitted to be taken with respect to any of the Credit Agreement, any Note or any other Loan Document, the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay all or any part of the 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 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 the amounts and at the times required or provided by or in connection with the Credit Agreement, any Notes Note or any other Loan Document, Guarantor is absolutely liable to make such payments and to confer such benefits on Lenders on a timely basis.
Appears in 1 contract
Absolute Guaranty. Guarantor's liabilities and obligations under ------------------ this ----------------- Guaranty shall be absolute and unconditional 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 hereofaccordance with this Guaranty) 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 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 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 Loan Party or 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 Borrower, Guarantor or Guarantorany other Loan Party;
(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 remedy with respect to any or all of the 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 ensure compliance with any term or provision of the Credit Agreement or any other Loan Document, (ii) to take or prosecute or properly or diligently take or prosecute any action for the collection of any or all of the Guaranteed Obligations against Borrower, Guarantor or any other guarantor of any or all of the Guaranteed Obligations and/or any other Loan Party or Person, (iii) to foreclose or prosecute or properly or diligently foreclose or prosecute any action in connection with any agreement, document or instrument or arrangement evidencing, securing or otherwise affecting all or any part of the Guaranteed Obligations, including, without limitation, any failure to conduct a commercially reasonable foreclosure sale, or (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 Borrower, Guarantor and/or Guarantor any other Loan Party of, or obtain the consent of Borrower Borrower, Guarantor and/or Guarantor any other Loan Party with respect to,(ito, (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 DocumentDocuments, (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, (viv) 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 BorrowerBorrower or any other Loan Party, 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 Borrower, Guarantor or Guarantor any other Loan Party any notice of any kind or to obtain Borrower's, Guarantor's or Guarantorany other Loan Party's consent under any circumstances whatsoever with respect to or in connection with the Guaranteed Obligations;
(i) the unenforceability, illegality or uncollectibility of all or any part of the Guaranteed Obligations against Borrower or any other Loan Party by reason of (i) failure of consideration, (ii) breach of warranty, (iii) fraud, (iv) the fact that the interest contracted for, charged, collected or received in respect of the Guaranteed Obligations exceeds the amount permitted by law, (v) the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, (ivvi) the officers, directors, partners, ----- ----- trustees or representatives creating the Guaranteed Obligations acted in excess of their authority or lacked legal capacity, (vvii) the Credit Agreement, any Note or any other Loan Document evidencing the Guaranteed Obligations has been forged or otherwise is irregular or is not genuine or authentic, or (viviii) 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 or any other Loan Party 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 Loan Party or any other Person;
(k) any merger, reorganization, consolidation or dissolution of BorrowerBorrower or any other Loan Party, any sale, lease or transfer of any or all of the assets of BorrowerBorrower or any other Loan 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 BorrowerBorrower or any other Loan Party;
(l) any failure of Administrative Agent or any Lender to notify Guarantor of (i)the i) the acceptance of this Guaranty, (ii) the making of Loans by any Lender in reliance on this Guaranty, (iii) the failure of Borrower or any other Loan Party to make any payment due by Borrower or any other Loan Party to Administrative Agent or any Lender, or (iv) any information regarding the financial condition or prospects of BorrowerBorrower or any other Loan Party;
(m) any existing or future offset, claim or defense of Borrower or any other Loan Party against Administrative Agent or any Lender or against payment of all or any part of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwiseotherwise (other than defenses resulting from the payment and performance of the Guaranteed Obligations);
(n) any full or partial release of the liability of BorrowerBorrower or any other Loan Party, any guarantor of all or any part of the 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 pay the Guaranteed Obligations in full without assistance or support, whether from BorrowerBorrower or any other Loan Party, any other guarantor or any other Person; or
(o) any other action taken or omitted to be taken with respect to any of the Credit Agreement, any Note or any other Loan Document, the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay all or any part of the 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 the amounts and at the times required or provided by or in connection with the Credit Agreement, any Notes Note or any other Loan Document, Guarantor is absolutely liable to make such payments and to confer such benefits on Lenders on a timely basis.
Appears in 1 contract
Absolute Guaranty. Guarantor's liabilities and obligations under ------------------ this Guaranty shall be absolute and unconditional 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 (on) 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 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 DocumentDocument (other than the Credit Agreement to which the Guarantor is a party), 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 remedy with respect to any or all of the 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 ensure compliance with any term or provision of the Credit Agreement or any other Loan Document, (ii) to take or prosecute or properly or diligently take or prosecute any action for the collection of any or all of the Guaranteed Obligations against Borrower, Guarantor or any other guarantor of any or all of the Guaranteed Obligations and/or any other Person, (iii) to foreclose or prosecute or properly or diligently foreclose or prosecute any action in connection with any agreement, document or instrument or arrangement evidencing, securing or otherwise affecting all or any part of the Guaranteed Obligations, including, without limitation, any failure to conduct a commercially reasonable foreclosure sale, or (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,(ito, (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 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 fact that the interest contracted for, charged, collected or received in respect of the Guaranteed Obligations exceeds the amount permitted by law, (v) the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, (ivvi) the officers, directors, partners, trustees or representatives creating the Guaranteed Obligations acted in excess of their authority or lacked legal capacity, (vvii) the Credit Agreement, any Note or any other Loan Document evidencing the Guaranteed Obligations has been forged or otherwise is irregular or is not genuine or authentic, or (viviii) 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 of (i)the i) the acceptance of this Guaranty, (ii) the making of Loans by any Lender in reliance on this Guaranty, (iii) the failure of Borrower to make any payment due by Borrower to Administrative Agent or any Lender, or (iv) any information regarding the financial condition or prospects of Borrower;
(m) any existing or future offset, claim or defense of Borrower against Administrative Agent or any Lender or against payment of all or any part of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise;
(n) any full or partial release of the liability of Borrower, any guarantor of all or any part of the 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 pay the Guaranteed Obligations in full without assistance or support, whether from Borrower, any other guarantor or any other Person; or
(on) any other action taken or omitted to be taken with respect to any of the Credit Agreement, any Note or any other Loan Document, the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay all or any part of the 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 the amounts and at the times required or provided by or in connection with the Credit Agreement, any Notes or any other Loan Document, Guarantor is absolutely liable to make such payments and to confer such benefits on Lenders on a timely basis.
Appears in 1 contract
Absolute Guaranty. No Guarantor's liabilities and obligations under ------------------ this Guaranty shall be absolute and unconditional irrespective of, shall not be released, impaired, limited, reduced, conditioned upon or otherwise affected by by, and such liabilities and obligations shall continue in full force and effect notwithstanding 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 (or) 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 not have any no liability, obligation or duty whatsoever with respect to such actions or inactions, it being acknowledged and agreed by each Guarantor that all of such liabilities, obligations and duties (if any) of the Administrative Agent or any and the Lender otherwise existing and all rights and remedies (if any) of each 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 any Guarantor for the Guaranteed Obligations, are hereby expressly waived by each Guarantor:
(a) the 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;
(ba) any 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;
(cb) Any partial or full release of the liability or obligation of any 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 Guarantor under any other guaranty whether or not similar to this Guarantyguarantor of the Guaranteed Obligations;
(dc) the The entering into, delivery of, modification of, amendment to or waiver of compliance with the Credit Agreement, any Note Note, any Letter of Credit 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 any Guarantor, the right of such notification being hereby specifically waived by each Guarantor;
(ed) the 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 Persontrust) of Borrower, any 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, or any limitation on the right to attorney's fees resulting from any proceeding under the Bankruptcy Code;
(fe) any increase, reduction, Any 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 any Guarantor, or any adjustment, indulgence, forbearance or compromise that might be granted or given by the Administrative Agent or any Lender to Borrower or any Guarantor;
(gf) any Any neglect, delay, omission, failure or refusal of the Administrative Agent or any Lender to (i) to exercise or properly or diligently exercise any right or remedy with respect to any or all of the Guaranteed Obligations or the collection thereof or any collateral, security or guaranty therefor, whether under the Credit Agreement, any Note Note, any Letter of Credit or any other Loan Document or otherwise, including, without limitation, to ensure compliance with any term or provision of the Credit Agreement or any other Loan Document, (ii) to take or prosecute or properly or diligently take or prosecute any action for the collection of any or all of the Guaranteed Obligations against Borrower, any Guarantor or any other guarantor of any or all of the Guaranteed Obligations and/or any other Person, (iii) to foreclose or prosecute or properly or diligently foreclose or prosecute any action in connection with any agreement, document or instrument or arrangement evidencing, securing or otherwise affecting all or any part of the Guaranteed Obligations, including, without limitation, any failure to conduct a commercially reasonable foreclosure sale, or (iv) to mitigate damages or take any other action to reduce, collect or enforce the Guaranteed Obligations;
(hg) any Any failure of the Administrative Agent or any Lender to give notice to Borrower and/or any Guarantor of, or obtain the consent of Borrower and/or or any Guarantor with respect to,(i) the incurrence of any of the Guaranteed Obligationsto, (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, (iiii) 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, (ivii) any renewal, extension or assignment of the Guaranteed Obligations or any part thereof, (viiii) 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 (viiv) any other action taken or refrained from being taken by the Administrative Agent or any Lender against Borrower, it being agreed that (except as may be expressly provided in the other Loan Documents) that neither the Administrative Agent nor any Lender shall be required to give Borrower or any Guarantor any notice of any kind or to obtain Borrower's or any Guarantor's consent under any circumstances whatsoever with respect to or in connection with the Guaranteed Obligations;
(ih) the The unenforceability, illegality or uncollectibility of all or any part of the Guaranteed Obligations against Borrower by reason of (i) failure the fact that the interest contracted for, charged, collected or received in respect of considerationthe Guaranteed Obligations exceeds the amount permitted by law, (ii) breach of warranty, (iii) the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, (iv) the officers, directors, partners, trustees or representatives creating the Guaranteed Obligations acted in excess of their authority or lacked legal capacityauthority, (v) the Credit Agreement, any Note Note, any Letter of Credit or any other Loan Document evidencing the Guaranteed Obligations has been forged or otherwise is irregular or is not genuine or authentic, or (vi) failure to comply with expiration of the applicable statute of fraudslimitations or for any other reason;
(ji) any Any payment by Borrower to the 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 the Administrative Agent or any such Lender is required to refund such payment or pay such amount to Borrower or any other Person;
(kj) any 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;
(lk) any Any failure of the Administrative Agent or any Lender to notify any Guarantor of (i)the the acceptance of this Guaranty, (ii) Guaranty or of the making of Loans loans by any Administrative Agent or such Lender in reliance on this Guaranty, (iii) Guaranty or of the failure of Borrower to make any payment due by Borrower to the Administrative Agent or any Lender, or (iv) any information regarding the financial condition or prospects of Borrower;
(ml) any Any existing or future offset, claim or defense of Borrower against the Administrative Agent or any Lender or against payment of all or any part of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise;
(nm) any Any full or partial release of the liability of Borrower, any guarantor of all or any part of the Guaranteed Obligations or any other Person for all or any part of the Guaranteed Obligations, it being acknowledged and agreed by each Guarantor that it may be required to pay the Guaranteed Obligations in full without assistance or support, whether from Borrower, any other guarantor or any other Person; or;
(on) any Any other action taken or omitted to be taken with respect to any of the Credit Agreement, any Note Note, any Letter of Credit or any other Loan Document, the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices any Guarantor or increases the likelihood that any Guarantor will be required to pay all or any part of the Guaranteed Obligations pursuant to the terms hereof;
(o) Any refusal or failure of any Lender or any other Person prior to the date hereof or hereafter to grant any additional loan or other credit accommodation to Borrower, or any Lender's or any other party's receipt of notice of such refusal or failure;
(p) Any refusal or failure of any Lender or any other Person to provide to any Guarantor any information relating to Borrower, any other guarantor, indorser, or any Person who has given any collateral as security for the payment of the Guaranteed Obligations or any information relating to Borrower's or such Guarantor's, indorser's or Person's financial condition, business or assets, or if such information is provided, to provide such information completely and accurately; or
(q) The expiration of the period of any statute of limitations with respect to any lawsuit or other legal proceeding against Borrower or any Person in any way related to the Guaranteed Obligations or a part thereof or any collateral therefor. Without limiting the foregoing or any Guarantor's liability under this Guaranty, to the extent that Administrative Agent and the Lenders (or any of themLender) have advanced funds or extended credit to Borrower and do not receive payments or benefits thereon in the amounts and at the times required or provided by or in connection with the Credit Agreement, any Notes or any other Loan Document, Guarantor each Guarantor, jointly and severally, is absolutely liable to make such payments and to confer such benefits on the Lenders on a timely basis.
Appears in 1 contract
Samples: Master Guaranty Agreement (Fyi Inc)
Absolute Guaranty. Guarantor's liabilities and obligations under ------------------ this Guaranty shall be absolute and unconditional 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 (on) 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 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 remedy with respect to any or all of the 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 ensure compliance with any term or provision of the Credit Agreement or any other Loan Document, (ii) to take or prosecute or properly or diligently take or prosecute any action for the collection of any or all of the Guaranteed Obligations against Borrower, Guarantor or any other guarantor of any or all of the Guaranteed Obligations and/or any other Person, (iii) to foreclose or prosecute or properly or diligently foreclose or prosecute any action in connection with any agreement, document or instrument or arrangement evidencing, securing or otherwise affecting all or any part of the Guaranteed Obligations, including, without limitation, any failure to conduct a commercially reasonable foreclosure sale, or (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,(ito, (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 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 fact that the interest contracted for, charged, collected or received in respect of the Guaranteed Obligations exceeds the amount permitted by law, (v) the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxxvires, (ivvi) the officers, directors, partners, trustees or trusteex xx representatives creating the Guaranteed Obligations acted in excess of their authority or lacked legal capacity, (vvii) the Credit Agreement, any Note or any other Loan Document evidencing the Guaranteed Obligations has been forged or otherwise is irregular or is not genuine or authentic, or (viviii) 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 of (i)the i) the acceptance of this Guaranty, (ii) the making of Loans by any Lender in reliance on this Guaranty, (iii) the failure of Borrower to make any payment due by Borrower to Administrative Agent or any Lender, or (iv) any information regarding the financial condition or prospects of Borrower;
(m) any existing or future offset, claim or defense of Borrower against Administrative Agent or any Lender or against payment of all or any part of the Guaranteed Obligations, whether such offset, claim or defense arises in connection with the Guaranteed Obligations (or the transactions creating the Guaranteed Obligations) or otherwise;
(n) any full or partial release of the liability of Borrower, any guarantor of all or any part of the 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 pay the Guaranteed Obligations in full without assistance or support, whether from Borrower, any other guarantor or any other Person; or
(on) any other action taken or omitted to be taken with respect to any of the Credit Agreement, any Note or any other Loan Document, the Guaranteed Obligations or the security and collateral therefor, whether or not such action or omission prejudices Guarantor or increases the likelihood that Guarantor will be required to pay all or any part of the 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 the amounts and at the times required or provided by or in connection with the Credit Agreement, any Notes or any other Loan Document, Guarantor is absolutely liable to make such payments and to confer such benefits on Lenders on a timely basis.
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