Continuing Guaranty. The Guarantor agrees that performance of the Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof): (a) any lack of validity or enforceability of any of the Loan Documents; (b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein; (c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral; (d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement); (e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents; (f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender; (g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding; (h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity; (i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship; (j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or (k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 5 contracts
Samples: Replacement Guaranty of Payment and Recourse Obligations (Inland Real Estate Income Trust, Inc.), Guaranty (Inland Real Estate Income Trust, Inc.), Replacement Guaranty of Payment and Recourse Obligations (Inland Real Estate Income Trust, Inc.)
Continuing Guaranty. The obligations of Guarantor under this Guaranty shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any provision of this Guaranty, the Note, the Loan Agreement, the Security Instrument or any other Loan Document. Guarantor agrees that performance of the Obligations by Guarantor obligations hereunder shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, recoupment, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations obligations hereunder or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, by any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including:
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Mortgage Loan, or any failure to perfect any lien in such collateral;
(db) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations obligations hereunder or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)Default;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(fc) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on upon it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(gd) any Bankruptcy Event, or any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicableobligations hereunder, or any of their respective property or creditors, creditors or any action taken by any trustee or receiver or by any court in any such proceeding;
(he) any merger or consolidation of the Borrower into or with any entity, entity or any sale, lease or transfer Transfer of any asset of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations obligations hereunder to any other person or entityPerson;
(if) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, Guarantor or any other guarantor of the Obligationsobligations hereunder, or any termination of any such relationship;
(jg) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from obligations hereunder, any obligation or agreement contained in any of the Loan Documents; or
(kh) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing foregoing, and whether foreseen seen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 4 contracts
Samples: Guaranty of Non Recourse Obligations (Independence Realty Trust, Inc), Guaranty of Non Recourse Obligations (Steadfast Income REIT, Inc.), Guaranty of Non Recourse Obligations (Steadfast Income REIT, Inc.)
Continuing Guaranty. The Guarantor agrees that Guarantor's obligations under this Guaranty are primary, absolute and unconditional. Only full and irrevocable payment and performance of the Obligations by Guarantor shall be a primary obligation, shall Guaranteed Debt will discharge Guarantor's obligations under this Guaranty. Guarantor's obligations under this Guaranty are not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged impaired or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
: (a) any lack of validity the genuineness, validity, regularity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loanof, or any failure to perfect any lien amendment or change in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations Agreement or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the other Loan Documents, or any change in or extension of the manner, place or terms of payment of, all or any portion of the Guaranteed Debt; (b) Lender's taking or failure to take any action to enforce the Agreement or the other action Loan Documents, or inaction on Lender's exercise or failure to exercise any remedy, power or privilege contained in the Loan Documents or available at law or otherwise, or the waiver by Lender of any provisions of the Agreement or the other Loan Documents; (c) any impairment, modification, change, release or limitation in any manner of the liability of Borrower or its estate in bankruptcy, or of any remedy for the enforcement of Borrower's liability, resulting from the operation of any present or future provision of the bankruptcy laws or any other statute or regulation, or the dissolution, bankruptcy, insolvency or reorganization of Borrower; (d) the merger or consolidation of Borrower, or any sale or transfer by Borrower of all or any part of its assets or property; (e) any claim Guarantor may have against any other Obligor, including any claim of contribution; (f) the Lender;
release, in whole or in part, of any other guarantor (if more than one), Borrower or any other Obligor; (g) any voluntary settlement or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings compromise with any Obligor with respect to any Guaranteed Debt or the Borrower, subordination of the Guarantor payment of all or any part of the Guaranteed Debt to the payment of any other debts or claims that may at any time be due and owing to Lender or any other guarantor of the Obligations, as applicable, Person; or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger other action or consolidation circumstance that may (with or without notice to or knowledge of the Borrower into Guarantor) in any manner or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person extent vary the risks of Guarantor under this Guaranty or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense discharge or discharge defense. Guarantor's obligations under this Guaranty are in addition to Guarantor's obligations under any other guaranties of the liabilities Guaranteed Debt or any other obligations of a guarantor or surety or which otherwise might limit recourse against the Borrower or any other Persons, and this Guaranty does not affect or invalidate those other guaranties. Guarantor's liability to Lender is deemed to be the aggregate liability of Guarantor to under the fullest extent permitted by lawterms of this Guaranty and any other guaranties made in favor of Lender before or after the date of this Guaranty.
Appears in 3 contracts
Samples: Guaranty (MortgageIT Holdings, Inc.), Guaranty (MortgageIT Holdings, Inc.), Guaranty (American Business Financial Services Inc /De/)
Continuing Guaranty. The THIS IS A "CONTINUING GUARANTY" UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL AND PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF BORROWER TO LENDER, NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE INDEBTEDNESS WILL NOT DISCHARGE OR DIMINISH GUARANTOR'S OBLIGATIONS AND LIABILITY UNDER THIS GUARANTY FOR ANY REMAINING AND SUCCEEDING INDEBTEDNESS EVEN WHEN ALL OR PART OF THE OUTSTANDING INDEBTEDNESS MAY BE A ZERO BALANCE FROM TIME TO TIME. Guarantor agrees that performance the obligations of the Obligations by Guarantor hereunder shall be a primary obligationobligations, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations Indebtedness or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of the Indebtedness or any of the Loan Documents;
(b) any termination, amendment, modification or other change in the Indebtedness or any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations Indebtedness or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan AgreementDocuments);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the ObligationsIndebtedness, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations Indebtedness to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, Guarantor or any other guarantor of the ObligationsIndebtedness, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor Borrower or any other guarantor of the Obligations Indebtedness from any obligation or agreement contained in any of the Loan Documents; or;
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or Guarantor; or
(l) any invalidity, irregularity or unenforceability in whole or in part (including with respect to any netting provision) of any interest rate swap, basis swap, forward rate, interest rate option, collar or corridor agreement or transaction or any similar transaction between Borrower and Lender or any confirmation, instrument or agreement required thereunder or related thereto, or any transaction entered into thereunder, or any limitation on the Guarantor to liability of Borrower thereunder or any limitation on the fullest extent permitted by lawmethod or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever.
Appears in 2 contracts
Samples: Guaranty (Wsi Industries, Inc.), Guaranty (Wsi Industries, Inc.)
Continuing Guaranty. The Guarantor agrees that Guarantor's obligations under this Guaranty are primary, absolute and unconditional. Only full and irrevocable payment and performance of the Obligations by Guarantor shall be a primary obligation, shall Guaranteed Debt will discharge Guarantor's obligations under this Guaranty. Guarantor's obligations under this Guaranty are not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged impaired or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
: (a) any lack of validity the genuineness, validity, regularity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loanof, or any failure to perfect any lien amendment or change in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations Agreement or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the other Loan Documents, or any change in or extension of the manner, place or terms of payment of, all or any portion of the Guaranteed Debt; (b) Credit Agent's or any Lender's taking or failure to take any action to enforce the Agreement or the other action Loan Documents, or inaction on Credit Agent's or any Lender's exercise or failure to exercise any remedy, power or privilege contained in the Loan Documents or available at law or otherwise, or the waiver by Credit Agent or any Lender of any provisions of the Agreement or the other Loan Documents; (c) any impairment, modification, change, release or limitation in any manner of the liability of any Borrower or its estate in bankruptcy, or of any remedy for the enforcement of any Borrower's liability, resulting from the operation of any present or future provision of the bankruptcy laws or any other statute or regulation, or the dissolution, bankruptcy, insolvency or reorganization of any Borrower; (d) the merger or consolidation of any Borrower, or any sale or transfer by any Borrower of all or any part of its assets or property; (e) any claim Guarantor may have against any other Obligor, including any claim of contribution; (f) the Lender;
release, in whole or in part, of any other guarantor (if more than one), any Borrower or any other Obligor; (g) any voluntary settlement or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings compromise with any Obligor with respect to any Guaranteed Debt or the Borrower, subordination of the Guarantor payment of all or any part of the Guaranteed Debt to the payment of any other debts or claims that may at any time be due and owing to Credit Agent or any Lender or any other guarantor of the Obligations, as applicable, Person; or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger other action or consolidation circumstance that may (with or without notice to or knowledge of the Borrower into Guarantor) in any manner or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person extent vary the risks of Guarantor under this Guaranty or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense discharge or discharge defense. Guarantor's obligations under this Guaranty are in addition to Guarantor's obligations under any other guaranties of the liabilities Guaranteed Debt or any other obligations of a guarantor or surety or which otherwise might limit recourse against the any Borrower or any other Persons, and this Guaranty does not affect or invalidate those other guaranties. Guarantor's liability to Credit Agent and Lenders is deemed to be the aggregate liability of Guarantor to under the fullest extent permitted by lawterms of this Guaranty and any other guaranties made in favor of Credit Agent or any Lender before or after the date of this Guaranty.
Appears in 2 contracts
Samples: Guaranty (American Home Mortgage Investment Corp), Guaranty (American Home Mortgage Investment Corp)
Continuing Guaranty. The Each Guarantor agrees that performance by such Guarantor of the Obligations by Guarantor obligations under this Guaranty shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that such Guarantor may have against the Lender, the Borrower, any other guarantor of the Guaranteed Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not such Guarantor shall have any knowledge thereof):), including without limitation —
(a) any Any lack of validity or enforceability of any of the Loan Documents;
(b) any Any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) rate or rates described therein;
(c) any Any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any Any failure, omission or delay on the part of the Borrower, the any Guarantor, any other guarantor of the Guaranteed Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)Default;
(e) any Any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any Any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any Any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the any Guarantor or any other guarantor of the Guaranteed Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any Any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the any Guarantor or any other guarantor of the Guaranteed Obligations to any other person or entity;
(i) any Any change in the ownership of the Borrower Borrower, or any change in the relationship between the Borrower, the Guarantor, Borrower and any Guarantor or any other guarantor of the Guaranteed Obligations, or any termination of any such relationship;
(j) any Any release or discharge by operation of law of the Borrower, the any Guarantor or any other guarantor of the Guaranteed Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any Any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the any Guarantor to the fullest extent permitted by law.
Appears in 2 contracts
Samples: Guaranty of Payment and Performance (Adcare Health Systems Inc), Guaranty of Payment and Performance (Adcare Health Systems Inc)
Continuing Guaranty. The Guarantor agrees guarantees that performance the Guaranteed Obligations will be paid promptly within five (5) days upon written demand by Lender strictly in accordance with the terms of this Guaranty. Subject to the termination of this Guaranty after the payment in full of all Guaranteed Obligations by in accordance with Section 14, the obligations of Guarantor under this Guaranty shall be a primary obligationabsolute, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entityunconditional and irrevocable, and shall remain be performed strictly in full force and effect without regard toaccordance with the terms of this Guaranty, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):notwithstanding:
(a) any lack of validity extension, renewal, modification, settlement, compromise, waiver or enforceability release in respect of any of the Loan DocumentsGuaranteed Obligations;
(b) any terminationextension, renewal, amendment, modification modification, rescission, waiver or other change release in respect of any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described thereinFinancing Document;
(c) any furnishingrelease, exchange, substitution substitution, non-perfection or invalidity of, or failure to exercise rights or remedies with respect to, any direct or indirect security for any Guaranteed Obligations, including the release of any collateral securing repayment other guarantor or other Person liable on any obligations of an Obligor under the Loan, or any failure to perfect any lien in such collateralFinancing Documents;
(d) any failurechange in the existence, omission structure or delay on the part ownership of the Borrower, the Guarantor, any Obligor or any other guarantor of the Obligations or the Lender to conform any insolvency, bankruptcy, reorganization or comply with other similar proceeding affecting any term of Obligor, any guarantor or any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)their respective assets;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance the existence of any of claim, defense, set-off or other rights or remedies which any other guarantor at any time may have against any Obligor, or any Obligor or any other guarantor may have at any time against Lender or any other Person, whether in connection with this Guaranty, the obligations Financing Documents, the transactions contemplated hereby or agreements contained in thereby or any of the Loan Documentsother transaction;
(f) any action invalidity or inaction by unenforceability for any reason of this Guaranty or the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan other Financing Documents, or any provision of law purporting to prohibit the payment or performance by any Obligor or any other action or inaction on the part guarantor of the Guaranteed Obligations or the Financing Documents, or of any other obligation to Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect failure to the Borrower, the Guarantor or any other guarantor give notice of the Obligations, as applicable, or any occurrence of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;an Event of Default; or
(h) any merger other circumstance or consolidation of the Borrower into happening whatsoever, whether or with any entity, or any sale, lease or transfer of not similar to any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawforegoing.
Appears in 2 contracts
Samples: Guaranty Agreement (Integrated Security Systems Inc), Guaranty Agreement (Integrated Security Systems Inc)
Continuing Guaranty. The THIS IS A “CONTINUING GUARANTY” UNDER WHICH GUARANTOR AGREES TO GUARANTEE THE FULL AND PUNCTUAL PAYMENT, PERFORMANCE AND SATISFACTION OF THE INDEBTEDNESS OF BORROWER TO LENDER, NOW EXISTING OR HEREAFTER ARISING OR ACQUIRED, ON AN OPEN AND CONTINUING BASIS. ACCORDINGLY, ANY PAYMENTS MADE ON THE INDEBTEDNESS WILL NOT DISCHARGE OR DIMINISH GUARANTOR’S OBLIGATIONS AND LIABILITY UNDER THIS GUARANTY FOR ANY REMAINING AND SUCCEEDING INDEBTEDNESS EVEN WHEN ALL OR PART OF THE OUTSTANDING INDEBTEDNESS MAY BE A ZERO BALANCE FROM TIME TO TIME. Guarantor agrees that performance the obligations of the Obligations by Guarantor hereunder shall be a primary obligationobligations, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations Indebtedness or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of the Indebtedness or any of the Loan Documents;
(b) any termination, amendment, modification or other change in the Indebtedness or any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations Indebtedness or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan AgreementDocuments);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the ObligationsIndebtedness, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations Indebtedness to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, Guarantor or any other guarantor of the ObligationsIndebtedness, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor Borrower or any other guarantor of the Obligations Indebtedness from any obligation or agreement contained in any of the Loan Documents; or;
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or Guarantor; or
(l) any invalidity, irregularity or unenforceability in whole or in part (including with respect to any netting provision) of any interest rate swap, basis swap, forward rate, interest rate option, collar or corridor agreement or transaction or any similar transaction between Borrower and Lender or any confirmation, instrument or agreement required thereunder or related thereto, or any transaction entered into thereunder, or any limitation on the Guarantor to liability of Borrower thereunder or any limitation on the fullest extent permitted by lawmethod or terms of payment thereunder which may now or hereafter be caused or imposed in any manner whatsoever.
Appears in 2 contracts
Samples: Guaranty (Wsi Industries, Inc.), Guaranty (Wsi Industries, Inc.)
Continuing Guaranty. (a) The Guarantor agrees that performance Obligations under this Guaranty are continuing, absolute, unconditional and irrevocable irrespective of the validity, regularity, enforceability or value of any of the Obligations by Guarantor shall be a primary obligationand notwithstanding any claim, shall not be subject to any counterclaim (other than a mandatory counterclaim), defense or right of set-off, abatement, deferment or defense (other than off which the defense of payment) based upon any claim that Guarantor Guarantors may have against the LenderSecured Party, including any such claim, defense or right based on any present or future applicable law and irrespective of any other circumstances which might otherwise constitute a legal or equitable release, defense or discharge of a surety or a guarantor. Without limiting the generality of the foregoing, the BorrowerObligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by:
(i) any rescission, waiver, amendment or modification of any other guarantor terms or provisions of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):the documents evidencing the same.
(aii) any lack of validity or enforceability of any of the Loan Documents;
(b) any terminationfraudulent, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loanillegal, or improper act by any failure to perfect any lien in such collateral;
(d) Guarantor or any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender Guarantor to conform or comply with any term of any the Obligations or of the Loan Documents or this Guaranty;
(iii) any failure of the Lender Secured Party to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement assert a claim or extension of time of payment demand or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert enforce or exercise any lien, security interest, right, power right or remedy conferred on it in against any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or for any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceedingreason;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(jiv) any release or discharge by operation of law or otherwise of any Guarantor from any Obligation or the documents evidencing the same;
(v) any change in the existence, structure or ownership of any Guarantor or the legal incapacity of any Guarantor;
(vi) any insolvency, bankruptcy, reorganization, arrangement, readjustment, composition, liquidation or other similar proceeding affecting any Guarantor or its/his assets or any resulting disallowance, release or discharge of all or any portion of the Borrower, Obligations;
(vii) the failure by any Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documentsperson to sign this Guaranty; orand
(kviii) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against any Guarantor.
(b) This Guaranty shall continue to be effective or be reinstated, as the Borrower case may be, if at any time payment or performance of the Guarantor Obligations, or any part thereof, to the fullest extent permitted Secured Party is rescinded or must otherwise be returned by lawthe Secured Party, whether in connection with the insolvency, bankruptcy or reorganization of any Guarantor, or otherwise, all as though such payment to the Secured Party has not been made.
Appears in 2 contracts
Samples: Global Guaranty Agreement (Greenshift Corp), Global Guaranty Agreement (Greenshift Corp)
Continuing Guaranty. The Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement, the Notes and the other Loan Documents. Each Guarantor agrees that performance the Guaranteed Obligations and Loan Documents may be extended or renewed, and Loans repaid and reborrowed in whole or in part, without notice to or assent by such Guarantor, and that it will remain bound upon this Guaranty notwithstanding any extension, renewal or other alteration of any Guaranteed Obligations or Loan Documents, or any repayment and reborrowing of Loans. To the Obligations maximum extent permitted by applicable law, the obligations of each Guarantor under this Guaranty shall be a primary obligationabsolute, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entityunconditional and irrevocable, and shall remain be performed strictly in full force and effect without regard toaccordance with the terms hereof under any circumstances whatsoever, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):including:
(a) any lack of validity extension, renewal, modification, settlement, compromise, waiver or enforceability release in respect of any of the Loan DocumentsGuaranteed Obligations;
(b) any terminationextension, renewal, amendment, modification modification, rescission, waiver or other change release in respect of any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishingrelease, exchange, substitution substitution, non-perfection or invalidity of, or failure to exercise rights or remedies with respect to, any direct or indirect security for any Guaranteed Obligations, including the release of any collateral securing repayment of the Loan, Guarantor or other Person liable on any failure to perfect any lien in such collateralGuaranteed Obligations;
(d) any failurechange in the corporate existence, omission structure or delay on the part ownership of the Borrower, any Guarantor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower, such Guarantor, any other guarantor of the Obligations Guarantor or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)their respective assets;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance the existence of any of claim, defense, set-off or other rights or remedies which such Guarantor at any time may have against the obligations Borrower, or agreements contained the Borrower or such Guarantor may have at any time against the Administrative Agent, any Lender, any other Guarantor or any other Person, whether in any of connection with this Guaranty, the Loan Documents, the transactions contemplated thereby or any other transaction other than by the payment in full by the Borrower of the Guaranteed Obligations after the termination of the Commitments of the Lenders;
(f) any action invalidity or inaction by the Lender under unenforceability for any reason of this Agreement or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the other Loan Documents, or any provision of law purporting to prohibit the payment or performance by the Borrower, such Guarantor or any other action or inaction on the part Guarantor of the Guaranteed Obligations or Loan Documents, or of any other obligation to the Administrative Agent or any Lender;; or
(g) any voluntary other circumstances or involuntary bankruptcyhappening whatsoever, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities whether or not similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawforegoing.
Appears in 2 contracts
Samples: Credit Agreement (Us Concrete Inc), Credit Agreement (Us Concrete Inc)
Continuing Guaranty. The Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement, the Notes and the other Loan Documents. Each Guarantor agrees that performance the Guaranteed Obligations and Loan Documents may be extended or renewed, and Loans repaid and reborrowed in whole or in part, without notice to or assent by such Guarantor, and that it will remain bound upon this Guaranty notwithstanding any extension, renewal or other alteration of any Guaranteed Obligations or Loan Documents, or any repayment and reborrowing of Loans. To the Obligations maximum extent permitted by applicable law, the obligations of each Guarantor under this Guaranty shall be a primary obligationabsolute, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entityunconditional and irrevocable, and shall remain be performed strictly in full force and effect without regard toaccordance with the terms hereof under any circumstances whatsoever, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):including:
(a) any lack of validity extension, renewal, modification, settlement, compromise, waiver or enforceability release in respect of any of the Loan DocumentsGuaranteed Obligations;
(b) any terminationextension, renewal, amendment, modification modification, rescission, waiver or other change release in respect of any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishingrelease, exchange, substitution substitution, non-perfection or invalidity of, or failure to exercise rights or remedies with respect to, any direct or indirect security for any Guaranteed Obligations, including the release of any collateral securing repayment of the Loan, Guarantor or other Person liable on any failure to perfect any lien in such collateralGuaranteed Obligations;
(d) any failurechange in the corporate existence, omission structure or delay on the part ownership of the BorrowerCompany, any Guarantor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Company, such Guarantor, any other guarantor of the Obligations Guarantor or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)their respective assets;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance the existence of any of claim, defense, set-off or other rights or remedies which such Guarantor at any time may have against the obligations Company, or agreements contained the Company or such Guarantor may have at any time against the Administrative Agent, any Bank, any other Guarantor or any other Person, whether in any of connection with this Guaranty, the Loan Documents, the transactions contemplated thereby or any other transaction other than by the payment in full by the Company of the Guaranteed Obligations after the termination of the Commitments of the Banks;
(f) any action invalidity or inaction by the Lender under unenforceability for any reason of this Agreement or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the other Loan Documents, or any provision of law purporting to prohibit the payment or performance by the Company, such Guarantor or any other action or inaction on the part Guarantor of the Lender;Guaranteed Obligations or Loan Documents, or of any other obligation to the Administrative Agent or any Bank; or
(g) any voluntary other circumstances or involuntary bankruptcyhappening whatsoever, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities whether or not similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawforegoing.
Appears in 2 contracts
Samples: Credit Agreement (Comfort Systems Usa Inc), Credit Agreement (Comfort Systems Usa Inc)
Continuing Guaranty. The Guarantor agrees that that, other than as set forth in this Guaranty, performance of the Obligations by the Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that the Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not the Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan AgreementNote);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, Guarantor or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 2 contracts
Samples: Guaranty of Payment (NNN 2003 Value Fund LLC), Guaranty of Payment (NNN 2003 Value Fund LLC)
Continuing Guaranty. The Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement and the other Loan Documents. Each Guarantor agrees that performance the Guaranteed Obligations and the Loan Documents may be extended or renewed, and Loans repaid and reborrowed in whole or in part, without notice to or assent by each Guarantor, and that it will remain bound upon this guaranty notwithstanding any extension, renewal or other alteration of any Guaranteed Obligations or the Obligations Loan Documents, or any repayment or reborrowing of Loans. To the maximum extent permitted by applicable law, the obligations of each Guarantor under this guaranty shall be a primary obligationabsolute, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entityunconditional and irrevocable, and shall remain be performed strictly in full force and effect accordance with the terms hereof under any circumstances whatsoever, including, without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):limitation:
(a) any lack extension, renewal, modification, settlement, compromise, waiver or release in respect of validity any Guaranteed Obligations;
(b) any extension, renewal, amendment, modification, rescission, waiver or enforceability release in respect of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishingrelease, exchange, substitution substitution, non-perfection or invalidity of, or failure to exercise rights or remedies with respect to, any direct or indirect security for any Guaranteed Obligations, including the release of any collateral securing repayment of the Loan, Guarantor or other Person liable on any failure to perfect any lien in such collateralGuaranteed Obligations;
(d) any failurechange in the corporate existence, omission structure or delay on ownership of any Borrower, any Guarantor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting either Borrower, such Guarantor, any other Guarantor or any of their respective assets;
(e) the part existence of any claim, defense, set-off or other rights or remedies which such Guarantor at any time may have against either Borrower, or either Borrower or such Guarantor may have at any time against the Agent, any Lender, any other Guarantor or any other Person, whether in connection with this guaranty, the Loan Documents, the transactions contemplated thereby or any other transaction other than by the payment in full by the Borrowers of the Guaranteed Obligations after the termination of the Commitments of the Lenders; or
(f) any invalidity or unenforceability for any reason of this Agreement or any other Loan Document, or any provision of law purporting to prohibit the payment or performance by either Borrower, the Guarantor, such Guarantor or any other guarantor of the Guaranteed Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or of any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect obligation to the Borrower, the Guarantor Agent or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawLender.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Gerber Scientific Inc), Credit and Guaranty Agreement (Gerber Scientific Inc)
Continuing Guaranty. The Guarantor agrees that performance by the Guarantor of the Obligations by Guarantor its obligations under this Guaranty shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-offset‑off, abatement, deferment or defense (other than the defense of payment) based upon any claim that the Guarantor may have against the Lender, the BorrowerBorrowers, any other guarantor of the Guaranteed Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not the Guarantor shall have any knowledge thereof):), including without limitation --
(a) any Any lack of validity or enforceability of any of the Loan Documents;
(b) any Any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) rate or rates described therein;
(c) any Any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any Any failure, omission or delay on the part of the BorrowerBorrowers, the Guarantor, any other guarantor of the Guaranteed Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)Default;
(e) any Any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any Any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any Any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the any Borrower, the Guarantor or any other guarantor of the Guaranteed Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any Any merger or consolidation of the any Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the any Borrower, the Guarantor or any other guarantor of the Guaranteed Obligations to any other person or entity;
(i) any Any change in the ownership of the Borrower any Borrower, or any change in the relationship between any Borrower and the Borrower, the Guarantor, Guarantor or any other guarantor of the Guaranteed Obligations, or any termination of any such relationship;
(j) any Any release or discharge by operation of law of the any Borrower, the Guarantor or any other guarantor of the Guaranteed Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any Any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the any Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 2 contracts
Samples: Guaranty of Payment and Performance (Adcare Health Systems, Inc), Guaranty of Payment and Performance (Adcare Health Systems, Inc)
Continuing Guaranty. (a) The Guarantor agrees that performance Obligations under this Guaranty are continuing, absolute, unconditional and irrevocable irrespective of the validity, regularity, enforceability or value of any of the Obligations by Guarantor shall be a primary obligationand notwithstanding any claim, shall not be subject to any counterclaim (other than a mandatory counterclaim), defense or right of set-off, abatement, deferment or defense (other than off which the defense of payment) based upon any claim that Guarantor Guarantors may have against the LenderSecured Party, including any such claim, defense or right based on any present or future applicable law and irrespective of any other circumstances which might otherwise constitute a legal or equitable release, defense or discharge of a surety or a guarantor. Without limiting the generality of the foregoing, the BorrowerObligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by:
(i) any rescission, waiver, amendment or modification of any other guarantor terms or provisions of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):the documents evidencing the same.
(aii) any lack of validity or enforceability of any of the Loan Documents;
(b) any terminationfraudulent, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loanillegal, or improper act by any failure to perfect any lien in such collateral;
(d) Guarantor or any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender Guarantor to conform or comply with any term of any the Obligations or of the Loan Documents or this Guaranty;
(iii) any failure of the Lender Secured Party to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement assert a claim or extension of time of payment demand or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert enforce or exercise any lien, security interest, right, power right or remedy conferred on it in against any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or for any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceedingreason;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(jiv) any release or discharge by operation of law or otherwise of any Guarantor from any Obligation or the documents evidencing the same;
(v) any change in the existence, structure or ownership of any Guarantor or the legal incapacity of any Guarantor;
(vi) any insolvency, bankruptcy, reorganization, arrangement, readjustment, composition, liquidation or other similar proceeding affecting any Guarantor or its/his assets or any resulting disallowance, release or discharge of all or any portion of the Borrower, Obligations;
(vii) the failure by any Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documentsperson to sign this Guaranty; orand
(kviii) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against any Guarantor.
(b) This Guaranty shall continue to be effective or be reinstated, as the Borrower case may be, if at any time payment or performance of the Guarantor Obligations, or any part thereof, to the fullest extent permitted Secured Party is rescinded or must otherwise be returned by lawthe Secured Party upon the insolvency, bankruptcy or reorganization of any Guarantor, or otherwise, all as though such payment to the Secured Party has not been made.
Appears in 2 contracts
Samples: Guaranty Agreement (Carbonics Capital Corp), Guaranty Agreement (Carbonics Capital Corp)
Continuing Guaranty. The Guarantor agrees that performance hereby unconditionally guarantees and promises to pay on demand to Greyrock, at the address indicated above, or at such other address as Greyrock may direct, in lawful money of the Obligations United States, all Indebtedness of Borrower now or hereafter owing to or held by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the LenderGreyrock. As used herein, the Borrower, any other guarantor of the Obligations or any other person or entity, term Indebtedness is used in its most comprehensive sense and shall remain in full force mean and effect include without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
limitation: (a) any lack and all debts, duties, obligations, liabilities, representations, warranties and guaranties of validity Borrower or enforceability any one or more of them, heretofore, now, or hereafter made, incurred, or created, whether voluntary or involuntary, due or not due, absolute or contingent, liquidated or unliquidated, certain or uncertain, determined or undetermined, monetary or nonmonetary, written or oral, and whether Borrower may be liable individually or jointly with others, and regardless of whether recovery thereon may be or hereafter become barred by any statute of the Loan Documents;
limitations, discharged or uncollectible in any bankruptcy, insolvency or other proceeding, or otherwise unenforceable; and (b) any terminationand all amendments, amendmentmodifications, modification renewals and extensions of any or other change in any all of the Loan Documentsforegoing, includingincluding without limitation amendments, without limitationmodifications, renewals and extensions which are evidenced by any modification of the interest rate(s) described therein;
new or additional instrument, document or agreement; and (c) any furnishingand all attorneys' fees, exchangecourt costs, substitution and collection charges incurred in endeavoring to collect or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender to conform or comply with any term of enforce any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the foregoing against Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor person liable thereon (whether or not suit be brought) and any other expenses of, for or incidental to collection thereof. As used herein, the term Borrower shall include any successor to the business and assets of Borrower, and shall also include Borrower in its capacity as a debtor or debtor in possession under the Obligationsfederal Bankruptcy Code, and any trustee, custodian or receiver for Borrower or any termination of its assets, should Borrower hereafter become the subject of any bankruptcy or insolvency proceeding, voluntary or involuntary; and all indebtedness, liabilities and obligations incurred by any such relationship;
(j) person shall be included in the Indebtedness guaranteed hereby. This Guaranty is given in consideration for credit and other financial accommodations which may, from time to time, be given by Gxxxxxxx to Borrower in Gxxxxxxx's sole discretion, but Guarantor acknowledges and agrees that acceptance by Gxxxxxxx of this Guaranty shall not constitute a commitment of any release kind by Greyrock to extend such credit or discharge by operation of law of other financial accommodation to Borrower or to permit Borrower to incur Indebtedness to Greyrock. All sums due under this Guaranty shall bear interest from the Borrower, date due until the Guarantor or any other guarantor of date paid at the Obligations from any obligation or agreement contained in highest rate charged with respect to any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.Indebtedness. *
Appears in 2 contracts
Samples: Continuing Guaranty (Level 8 Systems Inc), Continuing Guaranty (Seer Technologies Inc /De)
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect until the Indebtedness is repaid to Lender (except as expressly set forth herein) without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein, except to the extent that any such termination, amendment, modification or change to the Loan Documents changes Guarantor’s obligations thereunder;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)Note) to Guarantor;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan DocumentsDocuments which does not expressly extend to Guarantor;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, Guarantor or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) except as expressly agreed to by Lender, any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 2 contracts
Samples: Guaranty of Payment (Global Self Storage, Inc.), Guaranty of Payment (Global Self Storage, Inc.)
Continuing Guaranty. The Guarantor agrees that performance (a) this is a continuing guaranty, (b) the Guaranteed Obligations hereunder shall extend to each and every extension or renewal, if any, of the Loan Documents, regardless of whether the Guaranteed Obligations by Guarantor shall may, in successive transactions, be a primary obligationpaid, shall not be subject repaid, advanced, or renewed from time to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entitytime, and (c) this Guaranty shall remain in full force and effect without regard tountil the Guaranteed Obligations are paid in full and have been completely satisfied, and shall not be released, discharged impaired or affected in any way by, or be deemed to be satisfied by, nor shall Guarantor or the Collateral be exonerated, discharged, or released by, any circumstance of the following events:
12.1 Lender’s exercise or condition (whether enforcement of, or not Guarantor shall have failure or delay in exercising or enforcing, legal proceedings to collect the Obligations or any knowledge thereof):
(a) any lack of validity power, right, or enforceability of remedy with respect to any of the Loan Documents;
Obligations, the Collateral, or the Guaranteed Obligations including: (bi) any terminationaction or inaction of Lender to perfect, amendmentprotect, modification or other change enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Loan Documents, including, without limitationCollateral or any suspension of Lender’s right to enforce against Borrower any Obligations, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the LoanGuaranteed Obligations, or any failure to perfect any security interest in or lien in such collateral;
upon the Collateral; or (diii) any failurechange in the time, omission manner, or delay on the part place of the Borrowerpayment of, the Guarantoror in any other term of, any other guarantor or all of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan DocumentsGuaranteed Obligations, or any other action amendment to or inaction on the part waiver of the LenderLoan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Obligations or the Guaranteed Obligations;
(g) any voluntary or involuntary 12.2 insolvency, bankruptcy, insolvency, reorganization, arrangement, readjustmentadjustment, composition, assignment for the benefit of creditors, composition, receivershipappointment of a receiver or trustee for all or any part of Borrower’s or Guarantor’s assets, liquidation, marshaling winding-up, or dissolution of assets and liabilities Borrower or similar events Guarantor;
12.3 any limitation, discharge, cessation, or proceedings with respect to the Borrower, the Guarantor or any other guarantor partial satisfaction of the Obligations, as applicableof any Guaranteed 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 whole or in part, the Loan Agreement, this Guaranty, any other Loan Document, or any of their respective property or creditors, or other document evidencing any action taken by any trustee or receiver or by any court in any such proceedingObligations;
(h) 12.4 any merger merger, acquisition, consolidation or consolidation change in structure of the Borrower into or with any entity, Guarantor; or any sale, lease lease, transfer, or transfer other disposition of any or all of the assets or shares of Borrower or Guarantor;
12.5 any assignment or other transfer, in whole or in part, of Lender’s interest in and rights under the Borrower, the Guarantor Loan Agreement or any other guarantor Loan Document, including this Guaranty, or of Lender’s interest in the Obligations to any other person Obligations, the Guaranteed Obligations, or entitythe Collateral;
12.6 any claim, defense, counterclaim, or set-off, other than (i) any change in the ownership defense of prior performance or (ii) any defense based on any applicable provision of the Uniform Commercial Code requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any change in defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the relationship between the BorrowerObligations, the GuarantorGuaranteed Obligations, or the Collateral;
12.7 any other guarantor cancellation, renunciation, or surrender of any debt instrument evidencing the Obligations or the Guaranteed Obligations;
12.8 Lender’s vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Obligations, or any termination of any such relationshipthe Guaranteed Obligations;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or 12.9 any other guarantor of the Obligations from any obligation action or agreement contained in any of the Loan Documents; or
(k) any other occurrencecircumstances that might otherwise constitute a defense available to, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense discharge of, any surety, guarantor or discharge pledgor; or
12.10 the fact that any of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower Obligations or the Guaranteed Obligations may become due or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor to that the fullest extent permitted by lawGuaranteed Obligations shall not be discharged.
Appears in 2 contracts
Samples: Guaranty (Crimson Wine Group, LTD), Guaranty (Crimson Wine Group, LTD)
Continuing Guaranty. The Guarantor agrees that performance of This Guaranty is a continuing guaranty, and the Obligations obligations, undertakings and conditions to be performed or observed by Guarantor shall be a primary obligation, under this Guaranty shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment affected or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor impaired by reason of the Obligations or any other person or entityhappening from time to time of the following with respect to the Documents, and shall remain in full force and effect all without regard notice to, and shall not be releasedor the further consent of, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
Guarantor: (a) any lack the waiver by Landlord of validity the observance or enforceability performance by Tenant or Guarantor of any of the Loan Documents;
(b) any terminationobligations, amendmentundertakings, modification conditions or other change provisions contained in any of the Loan Documents, except to the extent of such waiver; (b) the extension, in whole or in part, of the time for payment of any amount owing or payable under the Documents; (c) the modification or amendment (whether material or otherwise) of any of the obligations of Tenant under, or any other provisions of, any of the Documents, except to the extent of such modification or amendment; (d) the taking or the omission of any of the actions referred to in any of the Documents (including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release giving of any collateral securing repayment of the Loan, or any failure consent referred to perfect any lien in such collateral;
therein); (de) any failure, omission omission, delay or delay lack on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender Landlord to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lienprovision of the Documents, security interest, including any right, power or remedy conferred on it Landlord in any of the Loan Documents, Documents or any other action or inaction on the part of Landlord granting indulgence or extension in any form; (f) the Lender;
assignment to or assumption by any third party of any or all of the rights or obligations of Tenant under all or any of the Documents; (g) the release or discharge of Tenant from the performance or observance of any voluntary obligation, undertaking or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect condition to the Borrower, the Guarantor or be performed by Tenant under any other guarantor of the ObligationsDocuments by operation of law, as applicable, including any rejection or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer disaffirmance of any of the assets of Documents in any bankruptcy or similar proceedings; (h) the Borrower, the Guarantor receipt and acceptance by Landlord or any other guarantor Person of notes, checks or other instruments for the Obligations to any other person or entity;
payment of money and extensions and renewals thereof; (i) any change action, inaction or election of remedies by Landlord which results in the ownership any impairment or destruction of the Borrower or any change in the relationship between the Borrower, the subrogation rights of Guarantor, or any rights of Guarantor to proceed against any other guarantor of the Obligations, or any termination of any such relationship;
Person for reimbursement; (j) any release or discharge by operation of setoff, defense, counterclaim, abatement, recoupment, reduction, change in law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation event or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, circumstance which might otherwise might constitute a legal or equitable discharge or defense of a guarantor, indemnitor or discharge surety under the laws of the liabilities State of a guarantor Arizona, the state in which the Property is located or surety any other jurisdiction; and (k) the termination or which otherwise might limit recourse against renewal of any of the Borrower Obligations or the Guarantor to the fullest extent permitted by lawany other provision thereof.
Appears in 2 contracts
Samples: Master Sale Leaseback Agreement, Master Sale Leaseback Agreement (Carvana Co.)
Continuing Guaranty. The This Guarantee is intended to be and shall be construed to be a continuing, absolute and unconditional guaranty. Guarantor guarantees that the Guaranteed Obligations will be paid promptly and strictly in accordance with the terms of this Guarantee. Without limiting the generality of the foregoing, Guarantor agrees that performance of the Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and its obligations hereunder shall not be released, discharged diminished or affected in any way impaired by, and waives any circumstance or condition rights which it might otherwise have which relate to any of the following (whether or not Guarantor shall have has consented thereto or received any knowledge notice thereof):
(a) any lack of validity extension, settlement, modification, amendment, compromise, waiver or enforceability release in respect of any of the Loan DocumentsGuaranteed Obligations;
(b) any termination, amendment, modification or other change in any lack of enforceability of the Loan Documents, including, without limitation, Guaranteed Obligations or any modification of the interest rate(s) described thereinother agreement or instrument relating thereto;
(c) any furnishingchange in the corporate existence, exchange, substitution structure or release of any collateral securing repayment ownership of the Loan, Mortgage Loan Seller or Guarantor or any failure to perfect any lien in such collateralinsolvency, bankruptcy, reorganization or other similar proceeding affecting the Mortgage Loan Seller, Guarantor or Indenture Trustee;
(d) the existence of any failureclaim, omission defense, set-off or delay on other rights or remedies which Guarantor at any time may have against the part of the BorrowerMortgage Loan Seller whether in connection with this Guarantee, the Guarantor, transactions contemplated hereby or any other guarantor of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)transaction;
(e) any waivergrant of any security or support for the Guaranteed Obligations whenever occurring, compromise, release, settlement including any pledge of collateral for the Guaranteed Obligations or extension of time of any person guaranteeing or otherwise becoming liable for the payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;Guaranteed Obligations; or
(f) any action or inaction by the Lender under or in respect impairment of any of security or support for the Loan DocumentsGuaranteed Obligations, including any failurefull or partial release, lack of diligence, omission or delay on the part of the Lender failure to perfect, enforceexchange, assert subordination, or exercise waste of any lien, security interest, right, power collateral for the Guaranteed Obligations or remedy conferred on it in any full or partial release of the Mortgage Loan DocumentsSeller, any guarantor, or any other action person liable for the payment of the Guaranteed Obligations. This Guarantee shall continue to be effective or inaction be reinstated, as the case may be, if any payment on the part Guaranteed Obligations must be refunded for any reason, including any bankruptcy proceeding. In the event that the Securities Administrator must refund any payment received on or against the Guaranteed Obligations, any prior release of or from this Guarantee shall be without effect, and this Guarantee shall be reinstated in full force and effect. It is the intention of Guarantor that the Guarantor’s obligations hereunder shall not be discharged until all payment of the Lender;
(g) Guaranteed Obligations have been finally and irrevocably paid or performed in full and are no longer subject to being set aside or returned under any voluntary law, rule or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawregulation.
Appears in 2 contracts
Samples: Guarantee (Alesco Financial Inc), Sale and Servicing Agreement (Alesco Financial Inc)
Continuing Guaranty. The Each Guarantor agrees that performance by such Guarantor of the Obligations by Guarantor obligations under this Guaranty shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that such Guarantor may have against the Lender, the BorrowerBorrowers, any other guarantor of the Guaranteed Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not such Guarantor shall have any knowledge thereof):), including without limitation —
(a) any Any lack of validity or enforceability of any of the Loan Documents;
(b) any Any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) rate or rates described therein;
(c) any Any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any Any failure, omission or delay on the part of the BorrowerBorrowers, the GuarantorGuarantors, any other guarantor of the Guaranteed Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)Default;
(e) any Any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any Any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any Any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the any Borrower, the any Guarantor or any other guarantor of the Guaranteed Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any Any merger or consolidation of the any Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the any Borrower, the any Guarantor or any other guarantor of the Guaranteed Obligations to any other person or entity;
(i) any Any change in the ownership of the Borrower any Borrower, or any change in the relationship between the Borrower, the Guarantor, any Borrower and any Guarantor or any other guarantor of the Guaranteed Obligations, or any termination of any such relationship;
(j) any Any release or discharge by operation of law of the any Borrower, the any Guarantor or any other guarantor of the Guaranteed Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any Any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the any Borrower or the any Guarantor to the fullest extent permitted by law.
Appears in 2 contracts
Samples: Guaranty of Payment and Performance (Adcare Health Systems Inc), Guaranty of Payment and Performance (Adcare Health Systems Inc)
Continuing Guaranty. (a) The Guarantor agrees that performance Obligations under this Guaranty are continuing, absolute, unconditional and irrevocable irrespective of the validity, regularity, enforceability or value of any of the Obligations by Guarantor shall be a primary obligationand notwithstanding any claim, shall not be subject to any counterclaim (other than a mandatory counterclaim), defense or right of set-off, abatement, deferment or defense (other than off which the defense of payment) based upon any claim that Guarantor Guarantors may have against the LenderSecured Party, including any such claim, defense or right based on any present or future applicable law and irrespective of any other circumstances which might otherwise constitute a legal or equitable release, defense or discharge of a surety or a guarantor. Without limiting the generality of the foregoing, the BorrowerObligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by:
(i) any rescission, waiver, amendment or modification of any other guarantor terms or provisions of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
(a) any lack of validity or enforceability of any of the Loan Documentsdocuments evidencing the same;
(bii) any terminationfraudulent, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loanillegal, or improper act by any failure to perfect any lien in such collateral;
(d) Guarantor or any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender Guarantor to conform or comply with any term of any the Obligations or of the Loan Documents or this Guaranty;
(iii) any failure of the Lender Secured Party to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement assert a claim or extension of time of payment demand or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert enforce or exercise any lien, security interest, right, power right or remedy conferred on it in against any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or for any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceedingreason;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(jiv) any release or discharge by operation of law or otherwise of any Guarantor from any Obligation or the documents evidencing the same;
(v) any change in the existence, structure or ownership of any Guarantor or the legal incapacity of any Guarantor;
(vi) any insolvency, bankruptcy, reorganization, arrangement, readjustment, composition, liquidation or other similar proceeding affecting any Guarantor or its/his assets or any resulting disallowance, release or discharge of all or any portion of the Borrower, Obligations;
(vii) the failure by any Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documentsperson to sign this Guaranty; or
(kviii) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against any Guarantor.
(b) This Guaranty shall continue to be effective or be reinstated, as the Borrower case may be, if at any time payment or performance of the Guarantor Obligations, or any part thereof, to the fullest extent permitted Secured Party is rescinded or must otherwise be returned by lawthe Secured Party, whether in connection with the insolvency, bankruptcy or reorganization of any Guarantor, or otherwise, all as though such payment to the Secured Party has not been made.
Appears in 2 contracts
Samples: Guaranty Agreement (Carbonics Capital Corp), Guaranty Agreement (Carbonics Capital Corp)
Continuing Guaranty. The Guarantor agrees Guarantors agree that performance the obligations of the Obligations by Guarantor Guarantors pursuant to Section 2 above and any other provision of any of the Loan Documents to which the Guarantors are a party shall be a primary obligationobligations, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor the Guarantors may have against the LenderAgent, the Banks, Borrower, any other guarantor of the Obligations or any other person or entityPerson, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, by any circumstance or condition (whether or not Guarantor the Guarantors shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loancollateral, or any failure to perfect any lien Lien in such any of collateral;
(d) any failure, omission or delay on the part of the Borrower, the GuarantorGuarantors, any other guarantor of the Obligations Obligations, Agent or the Lender Banks to conform or comply with any term of any of the Loan Documents or any failure of the Lender Agent or Banks to give notice of any Event of Default (as such term is defined in or of any disposition or intended disposition of any collateral securing the Loan Agreement)Obligations;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender Agent or Banks under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender Agent or Banks to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it them in any of the Loan Documents, or any other action or inaction on the part of the LenderAgent or Banks;
(g) any dissolution of any of the Guarantors or any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the any Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceedingproceeding including, without limitation, any proceeding under Title 11 of the United States Code (11 U.S.C. Section 101 et seq.), as amended (the “Bankruptcy Code”);
(h) any merger or consolidation of Borrower, any of the Borrower Guarantors or any other guarantor of the Obligations into or with any entityPerson, or any sale, lease or transfer of any of the assets of the Borrower, any of the Guarantor Guarantors or any other guarantor of the Obligations to any other person or entityPerson;
(i) any change in the ownership of the capital stock of any of the Guarantors, Borrower or any other guarantor of the Obligations or any change in the relationship between the Borrower, any of the Guarantor, Guarantors or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, any of the Guarantor Guarantors or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents;
(k) Agent’s or any Bank’s election, in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code;
(l) any borrowing or grant of a security interest by Borrower as debtor-in-possession under Section 364 of the Bankruptcy Code;
(m) the inability of Agent or any Bank to enforce the Obligations of Borrower as a result of the automatic stay provisions of Section 362 of the Bankruptcy Code;
(n) the disallowance, under Section 502 of the Bankruptcy Code; of all or any portion of Agent’s or any Bank’s claim or claims for repayment of the Obligations; or
(ko) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawGuarantors.
Appears in 2 contracts
Samples: Credit Agreement (Tandy Brands Accessories Inc), Credit Agreement (Tandy Brands Accessories Inc)
Continuing Guaranty. (a) The Guarantor agrees that performance Obligations under this Guaranty are continuing, absolute, unconditional and irrevocable irrespective of the validity, regularity, enforceability or value of any of the Obligations by Guarantor shall be a primary obligationand notwithstanding any claim, shall not be subject to any counterclaim (other than a mandatory counterclaim), defense or right of set-off, abatement, deferment or defense (other than off which the defense of payment) based upon any claim that Guarantor Guarantors may have against the LenderSecured Party, including any such claim, defense or right based on any present or future applicable law and irrespective of any other circumstances which might otherwise constitute a legal or equitable release, defense or discharge of a surety or a guarantor. Without limiting the generality of the foregoing, the BorrowerObligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by:
(i) any rescission, waiver, amendment or modification of any other guarantor terms or provisions of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):the documents evidencing the same.
(aii) any lack of validity or enforceability of any of the Loan Documents;
(b) any terminationfraudulent, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loanillegal, or improper act by any failure to perfect any lien in such collateral;
(d) Guarantor or any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender Guarantor to conform or comply with any term of any the Obligations or of the Loan Documents or this Guaranty;
(iii) any failure of the Lender Secured Party to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement assert a claim or extension of time of payment demand or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert enforce or exercise any lien, security interest, right, power right or remedy conferred on it in against any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or for any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceedingreason;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(jiv) any release or discharge by operation of law or otherwise of any Guarantor from any Obligation or the documents evidencing the same;
(v) any change in the existence, structure or ownership of any Guarantor or the legal incapacity of any Guarantor;
(vi) any insolvency, bankruptcy, reorganization, arrangement, readjustment, composition, liquidation or other similar proceeding affecting any Guarantor or its/his assets or any resulting disallowance, release or discharge of all or any portion of the Borrower, Obligations;
(vii) the failure by any Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documentsperson to sign this Guaranty; orand
(kviii) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against any Guarantor.
(b) This Guaranty shall continue to be effective or be reinstated, as the Borrower case may be, if at any time payment or performance of the Guarantor Obligations, or any part thereof, to the fullest extent permitted Secured Party is rescinded or must otherwise be returned by lawthe Secured Party upon the insolvency, bankruptcy or reorganization of the Guarantors, all as though such payment to the Secured Party has not been made.
Appears in 2 contracts
Samples: Global Guaranty Agreement (Mobilepro Corp), Global Guaranty Agreement (GS Cleantech Corp)
Continuing Guaranty. The Guarantor agrees that performance hereby unconditionally guarantees and promises to pay on demand to GC, at the address indicated above, or at such other address as GC may direct, in lawful money of the Obligations United States, and to perform for the benefit of GC, all Indebtedness of Borrower now or hereafter owing to or held by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the LenderGC. As used herein, the Borrower, any other guarantor of the Obligations or any other person or entity, term "Indebtedness" is used in its most comprehensive sense and shall remain in full force mean and effect include without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
limitation: (a) any lack and all debts, duties, obligations, liabilities, representations, warranties and guaranties of validity Borrower or enforceability any one or more of them, heretofore, now, or hereafter made, incurred, or created, however arising, whether voluntary or involuntary, due or not due, absolute or contingent, liquidated or unliquidated, certain or uncertain, determined or undetermined, monetary or nonmonetary, written or oral, and whether Borrower may be liable individually or jointly with others, and regardless of whether recovery thereon may be or hereafter become barred by any statute of the Loan Documents;
limitations, discharged or uncollectible in any bankruptcy, insolvency or other proceeding, or otherwise unenforceable; and (b) any terminationand all amendments, amendmentmodifications, modification renewals and extensions of any or other change in any all of the Loan Documentsforegoing, includingincluding without limitation amendments, without limitationmodifications, renewals and extensions which are evidenced by any modification of the interest rate(s) described therein;
new or additional instrument, document or agreement; and (c) any furnishingand all attorneys' fees, exchangecourt costs, substitution and collection charges incurred in endeavoring to collect or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender to conform or comply with any term of enforce any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the foregoing against Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor person liable thereon (whether or not suit be brought) and any other expenses of, for or incidental to collection thereof. As used herein, the term "Borrower" shall include any successor to the business and assets of Borrower, and shall also include Borrower in its capacity as a debtor or debtor in possession under the Obligationsfederal Bankruptcy Code, and any trustee, custodian or receiver for Borrower or any termination of its assets, should Borrower hereafter become the subject of any bankruptcy or insolvency proceeding, voluntary or involuntary; and all indebtedness, liabilities and obligations incurred by any such relationship;
(j) person shall be included in the Indebtedness guaranteed hereby. This Guaranty is given in consideration for credit and other financial accommodations which may, from time to time, be given by GC to Borrower in GC's sole discretion, but Guarantor acknowledges and agrees that acceptance by GC of this Guaranty shall not constitute a commitment of any release kind by GC to extend such credit or discharge by operation of law of other financial accommodation to Borrower or to permit Borrower to incur Indebtedness to GC. All sums due under this Guaranty shall bear interest from the Borrower, date due until the Guarantor or any other guarantor of date paid at the Obligations from any obligation or agreement contained in highest rate charged with respect to any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawIndebtedness.
Appears in 2 contracts
Samples: Continuing Guaranty (Prime Response Group Inc/De), Continuing Guaranty (Prime Response Inc/De)
Continuing Guaranty. The Each Guarantor agrees that performance of the Guaranteed Obligations by Guarantor Guarantors shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that either Guarantor may have against the Lender, the Borrower, any other guarantor of the Guaranteed Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not such Guarantor shall have had any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the either Guarantor, any other guarantor of the Guaranteed Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan AgreementNote);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the either Guarantor or any other guarantor of the Guaranteed Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor either Guarantor, or any other guarantor of the Guaranteed Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the either Guarantor, or any other guarantor of the Guaranteed Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor either Guarantor, or any other guarantor of the Guaranteed Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the either Guarantor to the fullest extent permitted by law.
Appears in 2 contracts
Samples: Guaranty of Payment and Recourse Carve Outs (Strategic Storage Trust VI, Inc.), Guaranty of Payment and Recourse Carve Outs (Strategic Storage Trust VI, Inc.)
Continuing Guaranty. The Guarantor agrees that the performance of the Obligations by the Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that the Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not the Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan AgreementNote);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the any Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the any Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, Guarantor or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 2 contracts
Samples: Guaranty of Payment (Industrial Services of America Inc), Guaranty of Payment (Industrial Services of America Inc /Fl)
Continuing Guaranty. The obligations of Guarantor under this Guaranty shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any provision of this Guaranty, the Note, the Loan Agreement, the Security Instrument or any other Loan Document. Guarantor agrees that performance of the Obligations by Guarantor obligations hereunder shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, recoupment, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations obligations hereunder or any other person or entityPerson, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, by any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including:
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Mortgage Loan, or any failure to perfect any lien in such collateral;
(db) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations obligations hereunder or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)Default;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(fc) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on upon it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(gd) any Bankruptcy Event, or any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicableobligations hereunder, or any of their respective property or creditors, creditors or any action taken by any trustee or receiver or by any court in any such proceeding;
(he) any merger or consolidation of the Borrower into or with any entity, entity or any sale, lease or transfer Transfer of any asset of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations obligations hereunder to any other person or entityPerson;
(if) any change in the ownership of the Borrower or any change in the relationship between the BorrowerXxxxxxxx, the Guarantor, Guarantor or any other guarantor of the Obligationsobligations hereunder, or any termination of any such relationship;
(jg) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from obligations hereunder, or any obligation or agreement contained in any of the Loan Documents; or
(kh) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing foregoing, and whether foreseen seen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Samples: Payment Guaranty
Continuing Guaranty. The Guarantor agrees that performance of This Guaranty is a continuing guaranty, and the Obligations obligations, undertakings and conditions to be performed or observed by Guarantor shall be a primary obligation, under this Guaranty shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment affected or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor impaired by reason of the Obligations or any other person or entityhappening from time to time of the following with respect to the Documents, and shall remain in full force and effect all without regard notice to, and shall not be releasedor the further consent of, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
Guarantor: (a) any lack the waiver by Lessor of validity the observance or enforceability performance by Lessee or Guarantor of any of the Loan Documents;
(b) any terminationobligations, amendmentundertakings, modification conditions or other change provisions contained in any of the Loan Documents, except to the extent of such waiver; (b) the extension, in whole or in part, of the time for payment of any amount owing or payable under the Documents; (c) the modification or amendment (whether material or otherwise) of any of the obligations of Lessee under, or any other provisions of, any of the Documents, except to the extent of such modification or amendment; (d) the taking or the omission of any of the actions referred to in any of the Documents (including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release giving of any collateral securing repayment of the Loan, or any failure consent referred to perfect any lien in such collateral;
therein); (de) any failure, omission omission, delay or delay lack on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender Lessor to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lienprovision of the Documents, security interest, including any right, power or remedy conferred on it Lessor in any of the Loan Documents, Documents or any other action or inaction on the part of Lessor granting indulgence or extension in any form; (f) the Lender;
assignment to or assumption by any third party of any or all of the rights or obligations of Lessee under all or any of the Documents; (g) the release or discharge of Lessee from the performance or observance of any voluntary obligation, undertaking or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect condition to the Borrower, the Guarantor or be performed by Lessee under any other guarantor of the ObligationsDocuments by operation of law, as applicable, including any rejection or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer disaffirmance of any of the assets of Documents in any bankruptcy or similar proceedings; (h) the Borrower, the Guarantor receipt and acceptance by Lessor or any other guarantor Person of notes, checks or other instruments for the Obligations to any other person or entity;
payment of money and extensions and renewals thereof; (i) any change action, inaction or election of remedies by Lessor which results in the ownership any impairment or destruction of the Borrower or any change in the relationship between the Borrower, the subrogation rights of Guarantor, or any rights of Guarantor to proceed against any other guarantor of the Obligations, or any termination of any such relationship;
Person for reimbursement; (j) any release or discharge by operation of setoff, defense, counterclaim, abatement, recoupment, reduction, change in law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation event or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, circumstance which might otherwise might constitute a legal or equitable discharge or defense of a guarantor, indemnitor or discharge surety under the laws of the liabilities State of a guarantor Arizona, the states in which the Properties are located or surety any other jurisdiction; and (k) the termination or which otherwise might limit recourse against renewal of any of the Borrower Obligations or the Guarantor to the fullest extent permitted by lawany other provision thereof.
Appears in 1 contract
Samples: Unconditional Guaranty of Payment and Performance (Local Bounti Corporation/De)
Continuing Guaranty. The All obligations of each Guarantor agrees that performance pursuant to ------------------- this Guaranty and any of the Obligations by other Credit Documents to which such Guarantor is a party (the "GUARANTOR OBLIGATIONS") shall be a primary obligationobligations of such Guarantor, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that such Guarantor may have against the LenderAgent, the Borrower, any other guarantor of the Obligations Guarantor or any other person or entityPerson, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, by any circumstance or condition (whether or not such Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of the Credit Agreement or any of the Loan other Credit Documents;
(b) any termination, amendment, modification or other change in the Credit Agreement or any of the Loan other Credit Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the LoanCollateral, or any failure to perfect any lien Lien in such collateralany of the Collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, Agent or any other guarantor of the Obligations or the Lender to conform or comply with any term of the Credit Agreement or any of the Loan other Credit Documents or any failure of the Lender Agent to give notice of any Event of Default (as such term is defined in the Loan Agreement)Default;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in the Credit Agreement or any of the Loan other Credit Documents;
(f) any action or inaction by the Agent or any Lender under or in respect of the Credit Agreement or any of the Loan other Credit Documents, any failure, lack of diligence, omission or delay on the part of the Lender Agent to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it Agent in the Credit Agreement or any of the Loan other Credit Documents, or any other action or inaction on the part of the Agent or any Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor Borrower or any other guarantor of the Obligations, as applicable, Guarantor or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower or any Guarantor into or with any entityPerson, or any sale, lease or transfer of any of the assets of the Borrower, the any Guarantor or any other guarantor of the Obligations Borrower to any other person or entityPerson;
(i) any change in the ownership of the Borrower or any change in the relationship between the any Guarantor and Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrowerany Guarantor, the Guarantor Borrower or any other guarantor of the Obligations Person from any obligation or agreement contained in the Credit Agreement or any of the Loan other Credit Documents; or
(k) to the extent permitted by law, any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower any Guarantor or the Guarantor to the fullest extent permitted by lawBorrower.
Appears in 1 contract
Samples: Guaranty (Mikohn Gaming Corp)
Continuing Guaranty. The Each Guarantor agrees that performance of the such Guarantor's Obligations by Guarantor shall be a primary obligationobligations of such Guarantor, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that such Guarantor may have against the LenderBank, the Borrower, any other guarantor of the Obligations Guarantor or any other person or entityPerson, and shall remain in full force and effect without regard to, and shall not be released, discharged discharged, limited or affected in any way by, by any circumstance or condition (whether or not such Guarantor shall have any knowledge thereof):), including, without limitation:
(a) any lack of validity or enforceability of the Credit Agreement or any of the Loan other Credit Documents;
(b) any termination, restatement, amendment, modification or other change in the Credit Agreement or any of the Loan other Credit Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loancollateral, if any, or any failure to perfect any lien in such any collateral, if any, given to secure the Debt of Borrower arising under the Credit Agreement and the other Credit Documents;
(d) any failure, omission or delay on the part of the Borrower, the GuarantorBank, or any other guarantor of the Obligations or the Lender Guarantor to conform or comply with any term of the Credit Agreement or any of the Loan other Credit Documents or any failure of the Lender Bank to give notice of any Event of Default (as such term is defined in the Loan Agreement)or any Incipient Default;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in the Credit Agreement or any of the Loan other Credit Documents;
(f) any action or inaction by the Lender Bank under or in respect of the Credit Agreement or any of the Loan other Credit Documents, any failure, lack of diligence, omission or delay on the part of the Lender Bank to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it Bank in the Credit Agreement or any of the Loan other Credit Documents, or any other action or inaction on the part of the LenderBank;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrowerany Guarantor, the Guarantor Borrower or any other guarantor of the Obligations, as applicable, Person or any of their respective property properties or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower Borrower, any Guarantor or any other Person into or with any entityPerson, or any sale, lease or transfer of any of the assets of the Borrower, the any Guarantor or any other guarantor of the Obligations Person to any other person or entityPerson;
(i) any change in the ownership of any of the capital stock of or other equity interests in Borrower or any Guarantor or any change in the relationship between the Borrower, the Guarantor, any Guarantor and Borrower or any other guarantor of the ObligationsGuarantor, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the any Guarantor or any other guarantor of the Obligations Borrower from any obligation or agreement contained in the Credit Agreement or any of the Loan other Credit Documents; or;
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against any Guarantor or Borrower;
(l) any election by Bank in any proceeding instituted under Chapter 11 of Bankruptcy Code;
(m) any borrowing or grant of a security interest by Borrower, any Guarantor or any other Person, as debtor-in-possession, or extension of credit, under Bankruptcy Code;
(n) the disallowance, under Bankruptcy Code, of all or any portion of Bank's claim(s) for repayment of the Debt of Borrower arising under the Credit Agreement and the other Credit Documents or the Guarantor of such Guarantor's Obligations;
(o) any use of cash collateral under Bankruptcy Code, and
(p) any agreement or stipulation as to the fullest extent permitted by lawprovision of adequate protection in any bankruptcy proceeding.
Appears in 1 contract
Samples: Credit Agreement (Landauer Inc)
Continuing Guaranty. The Guarantor agrees that performance the obligations of Guarantor pursuant to Section 2 above and any other provision of any of the Obligations by Loan Documents to which Guarantor is a party shall be a primary obligationobligations, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of paymentpayment or performance) based upon any claim that Guarantor may have against the LenderXxxxxx, the Borrower, any other guarantor of the Obligations or any other person or entityPerson, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, by any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the LoanCollateral, or any failure to perfect any lien Lien in such collateralany of the Collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations Obligations, or the Lender Xxxxxx to conform or comply with any term of any of the Loan Documents or any failure of the Lender Xxxxxx to give notice of any Default or Event of Default (as such term is defined in the Loan Agreement)Default;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender Xxxxxx under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender Xxxxxx to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the LenderXxxxxx;
(g) any dissolution of Borrower, Guarantor or any guarantor or any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of Borrower, Guarantor or any other guarantor of the Borrower Obligations into or with any entityPerson, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entityPerson;
(i) any change in the ownership of the capital stock or other equity securities of Guarantor, Borrower or any other guarantor of the Obligations or any change in the relationship between the Borrower, the Guarantor, Guarantor or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawGuarantor.
Appears in 1 contract
Samples: Guaranty (Newpark Resources Inc)
Continuing Guaranty. The Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement, the Notes and the other Loan Documents. Each Guarantor agrees that performance the Guaranteed Obligations and Loan Documents may be extended or renewed, and that it will remain bound upon this Guaranty notwithstanding any extension, renewal or other alteration of the any Guaranteed Obligations by or Loan Documents. The obligations of each Guarantor under this Guaranty shall be a primary obligationabsolute, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entityunconditional and irrevocable, and shall remain be performed strictly in full force and effect without regard toaccordance with the terms hereof under any circumstances whatsoever, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):including:
(a) any lack of validity extension, renewal, modification, settlement, compromise, waiver or enforceability release in respect of any Guaranteed Obligations, including any reduction or termination of all or a portion of the Loan DocumentsCommitment;
(b) any terminationextension, renewal, amendment, modification modification, rescission, waiver or other change release in respect of any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishingrelease, exchange, substitution substitution, non-perfection or invalidity of, or failure to exercise rights or remedies with respect to, any direct or indirect security for any Guaranteed Obligations, including the release of any collateral securing repayment of the Loan, Guarantor or other Person liable on any failure to perfect any lien in such collateralGuaranteed Obligations;
(d) any failurechange in the corporate existence, omission structure or delay on the part ownership of the a Borrower, the any Guarantor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting a Borrower, such Guarantor, any other guarantor of the Obligations Guarantor or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)their respective assets;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance the existence of any of claim, defense, set-off or other rights or remedies which such Guarantor at any time may have against a Borrower, or a Borrower or such Guarantor may have at any time against the obligations Bank, any other Guarantor or agreements contained any other Person, whether in any of connection with this Guaranty, the Loan Documents, the transactions contemplated thereby or any other transaction;
(f) any action invalidity or inaction by the Lender under unenforceability for any reason of this Agreement or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the other Loan Documents, or any provision of law purporting to prohibit the payment or performance by a Borrower, such Guarantor or any other action or inaction on the part Guarantor of the Lender;Guaranteed Obligations or Loan Documents, or of any other obligation to the Bank; or
(g) any voluntary other circumstances or involuntary bankruptcyhappening whatsoever, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities whether or not similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawforegoing.
Appears in 1 contract
Continuing Guaranty. The obligations of Guarantor under this Guaranty shall be unconditional irrespective of the genuineness, validity, regularity or enforceability of any provision of this Guaranty, the Note, the Loan Agreement, the Security Instrument or any other Loan Document. Guarantor agrees that performance of the Obligations by Guarantor obligations hereunder shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, recoupment, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations obligations hereunder or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, by any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including:
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing secunng repayment of the Mortgage Loan, or any failure to perfect any lien in such collateral;;
(db) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations obligations hereunder or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);Default;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(fc) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on upon it in any of the Loan Documents, or any other action or inaction on the part of the Lender;;
(gd) any Bankruptcy Event, or any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicableobligations hereunder, or any of their respective property or creditors, creditors or any action taken by any trustee or receiver or by any court in any such proceeding;;
(he) any merger or consolidation of the Borrower into or with any entity, entity or any sale, lease or transfer Transfer of any asset of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations obligations hereunder to any other person or entityPerson;
(if) any change in the ownership of the Borrower or any change in the relationship between the BorrowerXxxxxxxx, the Guarantor, Guarantor or any other guarantor of the Obligationsobligations hereunder, or any termination of any such relationship;
(jg) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from obligations hereunder, or any obligation or agreement contained in any of the Loan Documents; oror
(kh) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing foregoing, and whether foreseen seen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law..
Appears in 1 contract
Samples: Guaranty (Mullen Automotive Inc.)
Continuing Guaranty. The Guarantor agrees that performance by the Guarantor of the Obligations by Guarantor its obligations under this Guaranty shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-offset‑off, abatement, deferment or defense (other than the defense of payment) based upon any claim that the Guarantor may have against the Lender, the any Borrower, any other guarantor of the Guaranteed Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not the Guarantor shall have any knowledge thereof):), including without limitation --
(a) any Any lack of validity or enforceability of any of the Loan Documents;
(b) any Any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) rate or rates described therein;
(c) any Any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any Any failure, omission or delay on the part of the any Borrower, the Guarantor, any other guarantor of the Guaranteed Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)Default;
(e) any Any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any Any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any Any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the any Borrower, the Guarantor or any other guarantor of the Guaranteed Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any Any merger or consolidation of the any Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the any Borrower, the Guarantor or any other guarantor of the Guaranteed Obligations to any other person or entity;
(i) any Any change in the ownership of the Borrower any Borrower, or any change in the relationship between any Borrower and the Borrower, the Guarantor, Guarantor or any other guarantor of the Guaranteed Obligations, or any termination of any such relationship;
(j) any Any release or discharge by operation of law of the any Borrower, the Guarantor or any other guarantor of the Guaranteed Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any Any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the any Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Samples: Guaranty of Payment and Performance (Adcare Health Systems, Inc)
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
(a) The Company guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement and the other Loan Documents. The Company agrees that, to the maximum extent permitted by applicable law, the Guaranteed Obligations and Loan Documents to which the Subsidiary Borrower is a party may be extended or renewed, and indebtedness thereunder repaid and reborrowed in whole or in part, without notice to or assent by the Company, and that it will remain bound upon this Guaranty notwithstanding any lack of validity extension, renewal or enforceability other alteration of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Guaranteed Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any repayment and reborrowing of Loans. To the maximum extent permitted by applicable law, except as otherwise expressly provided in this Agreement or any other action Loan Document to which the Company is a party, the obligations of the Company under this Guaranty shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms hereof under any circumstances whatsoever, including:
(i) any modification, amendment, supplement, renewal, extension for any period, increase, decrease, alteration or inaction on the rearrangement of all or any part of the LenderGuaranteed Obligations, or of this Agreement or any other Loan Document executed in connection herewith, or any contract or understanding among the Company, the Subsidiary Borrower, the Administrative Agent and/or the Lenders, or any other Person, pertaining to the Guaranteed Obligations;
(gii) any voluntary adjustment, indulgence, forbearance or involuntary bankruptcy, compromise that might be granted or given by the Lenders to the Company or any other Person liable on the Guaranteed Obligations;
(iii) the insolvency, reorganizationbankruptcy, arrangement, readjustment, assignment for the benefit of creditorsadjustment, composition, receivership, liquidation, marshaling disability, dissolution or lack of assets and liabilities or similar events or proceedings with respect to power of the BorrowerCompany, the Guarantor Subsidiary Borrower or any other guarantor Person at any time liable for the payment of all or part of the Guaranteed Obligations, as applicable, ; or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation dissolution of the Company, the Subsidiary Borrower into or with any entity, or any sale, lease or transfer of any or all of the assets of the Company or the Subsidiary Borrower, the Guarantor or any other guarantor changes in the shareholders of the Obligations to Company, the Subsidiary Borrower, or any other person reorganization of the Company or entitythe Subsidiary Borrower;
(iiv) the invalidity, illegality or unenforceability of all or any change in the ownership part of the Borrower Guaranteed Obligations, or any change document or agreement executed in connection with the relationship between Guaranteed Obligations, for any reason whatsoever, including the fact that (A) the Guaranteed Obligations, or any part thereof, exceeds the amount permitted by law, (B) the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, (C) the officers or representatives executing the documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, (D) the Guaranteed Obligations or any part thereof violate applicable usury laws, (E) the Company or the Subsidiary Borrower has valid defenses, claims and offsets (whether at law or in equity, by agreement or by statute) which render the Guaranteed Obligations wholly or partially uncollectible from the Company or the Subsidiary Borrower, (F) the Guarantorcreation, performance or repayment of the Guaranteed Obligations (or execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations, or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or (G) this Agreement, any other Loan Document, or any other guarantor document or instrument pertaining to the Guaranteed Obligations has been forged or otherwise is irregular or not genuine or authentic;
(v) any full or partial release of the liability of the Company or the Subsidiary Borrower on the Guaranteed Obligations or any part thereof, or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof; it being recognized, acknowledged and agreed by the Company that the Company may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and the Company has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that any other Person will be liable to perform the Guaranteed Obligations, or that the Administrative Agent or any Lender will look to any other Person to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment of any collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) the failure of the Administrative Agent, the Lenders or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(ix) the fact that any collateral, security or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien; it being recognized and agreed by the Company that the Company is not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectability or value of any of the collateral for the Guaranteed Obligations;
(x) any payment by the Subsidiary Borrower or the Company to the Administrative Agent or any Lender is held to constitute a preference under bankruptcy laws, or for any other reason any of the Administrative Agent or any Lender is required to refund such payment or pay such amount to the Subsidiary Borrower or any other Person; or
(xi) any other action taken or omitted to be taken with respect to this Agreement, any other Loan Document, the Guaranteed Obligations, or any termination of any security and collateral therefor, whether or not such relationship;
(j) any release action or discharge by operation of law omission prejudices the Company or increases the likelihood that the Company will be required to pay the Guaranteed Obligations pursuant to the terms hereof; it being the unambiguous and unequivocal intention of the BorrowerCompany that the Company shall be obligated to pay the Guaranteed Obligations when due, the Guarantor or notwithstanding any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, action, or omission whatsoever, whether similar contemplated or dissimilar to the foregoing uncontemplated, and whether foreseen or unforeseennot otherwise or particularly described herein, which otherwise might constitute a legal or equitable defense or discharge except for the full and final payment and satisfaction of the liabilities Guaranteed Obligations after the termination of a guarantor the Commitments of all Lenders and the expiration or surety or which otherwise might limit recourse against termination of the Subsidiary Borrower or the Guarantor Letter of Credit.
(b) The Company further agrees that, to the fullest extent permitted by law, as between the Company, on the one hand, and the Lenders and the Administrative Agent, on the other hand, (i) the maturity of the Guaranteed Obligations may be accelerated as provided in Article VII for the purposes of this Guaranty, notwithstanding any stay, injunction or other prohibition preventing such acceleration of the Guaranteed Obligations, and (ii) in the event of any acceleration of the Guaranteed Obligations as provided in Article VII, the Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Company for the purpose of this Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Kinder Morgan Energy Partners L P)
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by the Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that the Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not the Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan AgreementMortgage);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, Guarantor or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) other than satisfaction of the Obligations in full, any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Samples: Guaranty of Payment (Grubb & Ellis Healthcare REIT, Inc.)
Continuing Guaranty. The Guarantor agrees that performance of This Guaranty is a continuing guaranty, and the Obligations obligations, undertakings and conditions to be performed or observed by Guarantor shall be a primary obligation, under this Guaranty shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment affected or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor impaired by reason of the Obligations or any other person or entityhappening from time to time of the following with respect to the Documents, and shall remain in full force and effect all without regard notice to, and shall not be releasedor the further consent of, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
Guarantor: (a) any lack the waiver by Lessor of validity the observance or enforceability performance by Lessee or Guarantor of any of the Loan Documents;
(b) any terminationobligations, amendmentundertakings, modification conditions or other change provisions contained in any of the Loan Documents, except to the extent of such waiver; (b) the extension, in whole or in part, of the time for payment of any amount owing or payable under the Documents; (c) the modification or amendment (whether material or otherwise) of any of the obligations of Lessee under, or any other provisions of, any of the Documents, except to the extent of such modification or amendment; (d) the taking or the omission of any of the actions referred to in any of the Documents (including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release giving of any collateral securing repayment of the Loan, or any failure consent referred to perfect any lien in such collateral;
therein); (de) any failure, omission omission, delay or delay lack on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender Lessor to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lienprovision of the Documents, security interest, including any right, power or remedy conferred on it Lessor in any of the Loan Documents, Documents or any other action or inaction on the part of Lessor granting indulgence or extension in any form; (f) the Lender;
assignment to or assumption by any third party of any or all of the rights or obligations of Lessee under all or any of the Documents; (g) the release or discharge of Lessee from the performance or observance of any voluntary obligation, undertaking or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect condition to the Borrower, the Guarantor or be performed by Lessee under any other guarantor of the ObligationsDocuments by operation of law, as applicable, including any rejection or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer disaffirmance of any of the assets of Documents in any bankruptcy or similar proceedings; (h) the Borrower, the Guarantor receipt and acceptance by Lessor or any other guarantor Person of notes, checks or other instruments for the Obligations to any other person or entity;
payment of money and extensions and renewals thereof; (i) any change action, inaction or election of remedies by Lessor which results in the ownership any impairment or destruction of the Borrower or any change in the relationship between the Borrower, the subrogation rights of Guarantor, or any rights of Guarantor to proceed against any other guarantor of the Obligations, or any termination of any such relationship;
Person for reimbursement; (j) any release or discharge by operation of setoff, defense, counterclaim, abatement, recoupment, reduction, change in law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation event or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, circumstance which might otherwise might constitute a legal or equitable discharge or defense of a guarantor, indemnitor or discharge surety under the laws of the liabilities Commonwealth of a guarantor Pennsylvania, the states in which the Properties are located or surety any other jurisdiction; and (k) the renewal of any of the Obligations. Notwithstanding the foregoing or which otherwise might limit recourse against the Borrower or the Guarantor anything contained in this Guaranty to the fullest contrary, Guarantor shall have the right to assert all claims and defenses hereunder and under the Lease to the extent that Lxxxxx is permitted such claim or defense, with respect to the Lease, by applicable law. In addition to the foregoing, Guarantor represents and warrants to Lessor that (i) it is the borrower on all corporate debt with respect to Lessee and Lessee Entities.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that performance of This Guaranty is a continuing guaranty, and the Obligations obligations, undertakings and conditions to be performed or observed by Guarantor shall be a primary obligation, under this Guaranty shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment affected or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor impaired by reason of the Obligations or any other person or entityhappening from time to time of the following with respect to the Documents, and shall remain in full force and effect all without regard notice to, and shall not be releasedor the further consent of, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
Guarantor: (a) any lack the waiver by Lessor of validity the observance or enforceability performance by Lessee or Guarantor of any of the Loan Documents;
(b) any terminationobligations, amendmentundertakings, modification conditions or other change provisions contained in any of the Loan Documents, except to the extent of such waiver; (b) the extension, in whole or in part, of the time for payment of any amount owing or payable under the Documents; (c) the modification or amendment (whether material or otherwise) of any of the obligations of Lessee under, or any other provisions of, any of the Documents, except to the extent of such modification or amendment; (d) the taking or the omission of any of the actions referred to in any of the Documents (including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release giving of any collateral securing repayment of the Loan, or any failure consent referred to perfect any lien in such collateral;
therein); (de) any failure, omission omission, delay or delay lack on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender Lessor to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lienprovision of the Documents, security interest, including any right, power or remedy conferred on it Lessor in any of the Loan Documents, Documents or any other action or inaction on the part of Lessor granting indulgence or extension in any form; (f) the Lender;
assignment to or assumption by any third party of any or all of the rights or obligations of Lessee under all or any of the Documents; (g) the release or discharge of Lessee from the performance or observance of any voluntary obligation, undertaking or involuntary bankruptcycondition to be performed by Lessee under any of the Documents by operation of law, insolvencyincluding any rejection or disaffirmance of any of the Documents in any bankruptcy or similar proceedings; (h) the receipt and acceptance by Lessor or any other Person of notes, reorganization, arrangement, readjustment, assignment checks or other instruments for the benefit payment of creditorsmoney and extensions and renewals thereof; (i) any action, compositioninaction or election of remedies by Lessor which results in any impairment or destruction of any subrogation rights of Guarantor, receivershipor any rights of Guarantor to proceed against any other Person for reimbursement; (j) any setoff, liquidationdefense, marshaling counterclaim, abatement, recoupment, reduction, change in law or any other event or circumstance which might otherwise constitute a legal or 2 4000-0000-0000.4 STORE/Ampco Guaranty 3 Properties in PA and IN File No.: 7210/02-637 equitable discharge or defense of assets a guarantor, indemnitor or surety under the laws of the Commonwealth of Pennsylvania, the states in which the Properties are located or any other jurisdiction; and liabilities (k) the renewal of any of the Obligations. Notwithstanding the foregoing or similar events anything contained in this Guaranty to the contrary, Guarantor shall have the right to assert all claims and defenses hereunder and under the Lease to the extent that Lessee is permitted such claim or proceedings defense, with respect to the BorrowerLease, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by applicable law.
Appears in 1 contract
Samples: Unconditional Guaranty of Payment and Performance (Ampco Pittsburgh Corp)
Continuing Guaranty. The Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement, the Notes and the other Loan Documents. Each Guarantor agrees that performance the Guaranteed Obligations and Loan Documents may be extended or renewed, and Advances repaid and reborrowed in whole or in part, without notice to or assent by such Guarantor, and that it will remain bound upon this Guaranty notwithstanding any extension, renewal or other alteration of the any Guaranteed Obligations by or Loan Documents, or any repayment and reborrowing of Advances. The obligations of each Guarantor under this Guaranty shall be a primary obligationabsolute, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entityunconditional and irrevocable, and shall remain be performed strictly in full force and effect without regard toaccordance with the terms hereof under any circumstances whatsoever, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):including:
(a) any lack of validity extension, renewal, modification, settlement, compromise, waiver or enforceability release in respect of any Guaranteed Obligations, including any reduction or termination of all or a portion of the Loan DocumentsCommitment;
(b) any terminationextension, renewal, amendment, modification modification, rescission, waiver or other change release in respect of any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishingrelease, exchange, substitution substitution, non-perfection or invalidity of, or failure to exercise rights or remedies with respect to, any direct or indirect security for any Guaranteed Obligations, including the release of any collateral securing repayment of the Loan, Guarantor or other Person liable on any failure to perfect any lien in such collateralGuaranteed Obligations;
(d) any failurechange in the corporate existence, omission structure or delay on the part ownership of the a Borrower, the any Guarantor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting a Borrower, such Guarantor, any other guarantor of the Obligations Guarantor or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)their respective assets;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance the existence of any of claim, defense, set-off or other rights or remedies which such Guarantor at any time may have against a Borrower, or a Borrower or such Guarantor may have at any time against the obligations Bank, any other Guarantor or agreements contained any other Person, whether in any of connection with this Guaranty, the Loan Documents, the transactions contemplated thereby or any other transaction;
(f) any action invalidity or inaction by the Lender under unenforceability for any reason of this Agreement or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the other Loan Documents, or any provision of law purporting to prohibit the payment or performance by a Borrower, such Guarantor or any other action or inaction on the part Guarantor of the Lender;Guaranteed Obligations or Loan Documents, or of any other obligation to the Bank; or
(g) any voluntary other circumstances or involuntary bankruptcyhappening whatsoever, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities whether or not similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawforegoing.
Appears in 1 contract
Continuing Guaranty. (a) The Guarantor guarantees that the Guaranteed Obligations shall be paid strictly in accordance with the terms of this Agreement and the other Loan Documents. The Guarantor agrees that, to the maximum extent permitted by applicable law, the Guaranteed Obligations and Loan Documents to which the Borrower is a party may be extended or renewed, and indebtedness thereunder repaid and reborrowed in whole or in part, without notice to or assent by the Guarantor, and that performance of the Obligations by Guarantor shall be a primary obligationremain bound upon this Guaranty notwithstanding any extension, shall not be subject to any counterclaim (renewal or other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
(a) any lack of validity or enforceability alteration of any of the Guaranteed Obligations or such Loan Documents;Documents or any repayment and reborrowing of Loans to the Borrower. The obligations of the Guarantor under this Guaranty are absolute and unconditional irrespective of the value, genuineness, validity, regularity or enforceability of the obligations of the Borrower under this Agreement or any other Loan Document or any substitution, release or exchange of any other guarantee of or security for the Obligations. To the maximum extent permitted by applicable law, except as otherwise expressly provided in this Agreement or any other Loan Document to which the Guarantor is a party, the obligations of the Guarantor under this Guaranty shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms hereof under any circumstances whatsoever, including:
(bi) any terminationmodification, amendment, modification supplement, renewal, extension for any period, increase, decrease, alteration or other change in rearrangement of all or any part of the Guaranteed Obligations, or of this Agreement or any other Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the LoanDocument executed in connection herewith, or any failure to perfect any lien in such collateral;
(d) any failure, omission contract or delay on the part of understanding among the Borrower, the GuarantorAdministrative Agent, any other guarantor of the Obligations or Issuing Bank and/or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan DocumentsLenders, or any other action Person, pertaining to the Guaranteed Obligations;
(ii) any adjustment, indulgence, forbearance or inaction compromise that might be granted or given by the Lenders to the Guarantor, the Borrower or any other Person liable on the Guaranteed Obligations;
(iii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of the Guarantor, the Borrower or any other Person at any time liable for the payment of all or part of the Lender;
(g) Guaranteed Obligations; or any voluntary dissolution or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit winding up of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entityBorrower, or any sale, lease or transfer of any or all of the assets of the Guarantor or the Borrower, or any changes in the shareholders of the Guarantor or the Borrower, or any reorganization of the Guarantor or the Borrower;
(iv) the invalidity, illegality or unenforceability of all or any part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including the fact that (A) the Guaranteed Obligations, or any part thereof, exceed the amount permitted by law, (B) the act of creating the Guaranteed Obligations, or any part thereof is ultra vires, (C) the 59 xxxxcers or representatives executing the documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, (D) the Guaranteed Obligations or any part thereof violate applicable usury laws, (E) the Guarantor or the Borrower has valid defenses, claims, and offsets (whether at law or in equity, by agreement or by statute) which render the Guaranteed Obligations wholly or partially uncollectible from the Guarantor or the Borrower, (F) the creation, performance, or repayment of the Guaranteed Obligations (or execution, delivery and performance of any document or instrument representing any part of the Guaranteed Obligations or executed in connection with any of the Guaranteed Obligations, or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or (G) this Agreement, any other guarantor Loan Document, or any other document or instrument pertaining to any of the Guaranteed Obligations has been forged or otherwise is irregular or not genuine or authentic;
(v) any full or partial release of the liability of the Guarantor or the Borrower on the Guaranteed Obligations or any part thereof, or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee, or assure the payment of the Guaranteed Obligations or any part thereof; it being recognized, acknowledged, and agreed by the Guarantor that the Guarantor may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and that the Guarantor has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that any other Person shall be liable to perform the Guaranteed Obligations or that the Administrative Agent or any Lender shall look to any other person or entityPerson to perform the Guaranteed Obligations;
(ivi) the taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any change release, surrender, exchange, subordination, deterioration, waste, loss or impairment of any collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) the failure of the Administrative Agent, the Lenders, the Issuing Bank or any other Person to exercise diligence or reasonable care in the ownership preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(ix) the fact that any collateral, security or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien; it being recognized and agreed by the Guarantor that the Guarantor is not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the collateral for the Guaranteed Obligations;
(x) any payment by the Borrower or the Guarantor to the Administrative Agent or any change in Lender is held to constitute a preference under bankruptcy or insolvency laws, or for any other reason either the relationship between Administrative Agent or any Lender is required to refund such payment or pay such amount to the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan DocumentsPerson; or
(kxi) any other action taken or omitted to be taken with respect to this Agreement, any other Loan Document, the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices the Guarantor or increases the likelihood that the Guarantor shall be required to pay the Guaranteed Obligations pursuant to the terms hereof; it being the unambiguous and unequivocal intention of the Guarantor that the Guarantor shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, happening or event, action, or omission whatsoever, whether similar contemplated or dissimilar to the foregoing uncontemplated, and whether foreseen or unforeseennot otherwise or particularly described herein, which otherwise might constitute a legal or equitable defense or discharge except for the full and final payment and satisfaction of the liabilities Guaranteed Obligations after the termination of a guarantor or surety or which otherwise might limit recourse against all of the Borrower or the Commitments.
(b) The Guarantor further agrees that, to the fullest extent permitted by law, as between the Guarantor, or the one hand, and the Lenders and the Administrative Agent, on the other hand, (i) the maturity of the Borrower Obligations may be accelerated as provided in Section 9.01 for the purposes of this Guaranty, notwithstanding any stay, injunction or other prohibition preventing the acceleration of the Borrower Obligations as against the Borrower and (ii) in the event of any purported acceleration (whether by declaration or automatic) of the Borrower Obligations as provided in Section 9.01, the Borrower Obligations (whether or not due and payable) shall forthwith become due and payable by the Guarantor for the purpose of this Guaranty.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that Guarantor's obligations under this Guaranty are primary, absolute and unconditional. Only full and irrevocable payment and performance of the Obligations by Guarantor shall be a primary obligation, shall Guaranteed Debt will discharge Guarantor's obligations under this Guaranty. Guarantor's obligations under this Guaranty are not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged impaired or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
: (a) any lack of validity the genuineness, validity, regularity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loanof, or any failure to perfect any lien amendment or change in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations Agreement or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the other Loan Documents, or any change in or extension of the manner, place or terms of payment of, all or any portion of the Guaranteed Debt; (b) Lenders' taking or failure to take any action to enforce the Agreement or the other action Loan Documents, or inaction on Lenders' exercise or failure to exercise any remedy, power or privilege contained in the Loan Documents or available at law or otherwise, or the waiver by Lenders of any provisions of the Agreement or the other Loan Documents; (c) any impairment, modification, change, release or limitation in any manner of the liability of Borrower or its estate in bankruptcy, or of any remedy for the enforcement of Borrower's liability, resulting from the operation of any present or future provision of the bankruptcy laws or any other statute or regulation, or the dissolution, bankruptcy, insolvency or reorganization of Borrower; (d) the merger or consolidation of Borrower, or any sale or transfer by Borrower of all or any part of its assets or property; (e) any claim Guarantor may have against any other Obligor, including any claim of contribution; (f) the Lender;
release, in whole or in part, of any other guarantor (if more than one), Borrower or any other Obligor; (g) any voluntary settlement or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings compromise with any Obligor with respect to any Guaranteed Debt or the Borrower, subordination of the Guarantor payment of all or any part of the Guaranteed Debt to the payment of any other debts or claims that may at any time be due and owing to Lenders or any other guarantor of the Obligations, as applicable, Person; or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger other action or consolidation circumstance that may (with or without notice to or knowledge of the Borrower into Guarantor) in any manner or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person extent vary the risks of Guarantor under this Guaranty or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense discharge or discharge defense. Guarantor's obligations under this Guaranty are in addition to Guarantor's obligations under any other guaranties of the liabilities Guaranteed Debt or any other obligations of a guarantor or surety or which otherwise might limit recourse against the Borrower or any other Persons, and this Guaranty does not affect or invalidate those other guaranties. Guarantor's liability to Lenders are deemed to be the aggregate liability of Guarantor to under the fullest extent permitted by lawterms of this Guaranty and any other guaranties made in favor of Lenders before or after the date of this Guaranty.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
(a) WII guarantees that the Guaranteed Obligations shall be paid strictly in accordance with the terms of this Agreement and the other Loan Documents. WII agrees that, to the maximum extent permitted by applicable law, the Guaranteed Obligations and Loan Documents to which any lack of validity Borrower is a party may be extended or enforceability renewed, and indebtedness thereunder repaid and reborrowed in whole or in part, without notice to or assent by WII, and that WII shall remain bound upon this Guaranty notwithstanding any extension, renewal or other alteration of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Guaranteed Obligations or the Lender to conform or comply with any term of any of the such Loan Documents or any failure repayment and reborrowing of Loans to the Borrowers. The obligations of WII under this Guaranty are absolute and unconditional irrespective of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waivervalue, compromisegenuineness, releasevalidity, settlement regularity or extension of time of payment or performance or observance of any enforceability of the obligations or agreements contained in any of the Borrowers under this Agreement or any other Loan Documents;Document or any substitution, release or exchange of any other guarantee of or security for the Obligations. To the maximum extent permitted by applicable law, except as otherwise expressly provided in this Agreement or any other Loan Document to which WII is a party, the obligations of WII under this Guaranty shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms hereof under any circumstances whatsoever, including:
(fi) any action modification, amendment, supplement, renewal, extension for any period, increase, decrease, alteration or inaction by the Lender under rearrangement of all or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfectGuaranteed Obligations, enforceor of this Agreement or any other Loan Document executed in connection herewith, assert or exercise any liencontract or understanding among the Borrowers, security interestthe Administrative Agent, right, power or remedy conferred on it in any of the Loan DocumentsIssuing Bank and/or the Lenders, or any other action Person, pertaining to the Guaranteed Obligations;
(ii) any adjustment, indulgence, forbearance or inaction compromise that might be granted or given by the Lenders to WII, any Borrower or any other Person liable on the Guaranteed Obligations;
(iii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of WII, any Borrower or any other Person at any time liable for the payment of all or part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor Guaranteed Obligations; or any other guarantor dissolution or winding up of the Obligations, as applicable, WII or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entityBorrower, or any sale, lease or transfer of any or all of the assets of the WII or any Borrower, the Guarantor or any other guarantor changes in the shareholders of the Obligations to WII or any other person Borrower, or entityany reorganization of WII or any Borrower;
(iiv) the invalidity, illegality or unenforceability of all or any change in the ownership part of the Borrower Guaranteed Obligations, or any change document or agreement executed in connection with the relationship between Guaranteed Obligations, for any reason whatsoever, including the fact that (A) the Guaranteed Obligations, or any part thereof, exceed the amount permitted by law, (B) the act of creating the Guaranteed Obligations, or any part thereof is ultra xxxxx, (C) the officers or representatives executing the documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, (D) the Guaranteed Obligations or any part thereof violate applicable usury laws, (E) WII or any Borrower has valid defenses, claims, and offsets (whether at law or in equity, by agreement or by statute) which render the Guaranteed Obligations wholly or partially uncollectible from WII or any Borrower, (F) the Guarantorcreation, performance, or repayment of the Guaranteed Obligations (or execution, delivery and performance of any document or instrument representing any part of the Guaranteed Obligations or executed in connection with any of the Guaranteed Obligations, or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or (G) this Agreement, any other Loan Document, or any other guarantor document or instrument pertaining to any of the ObligationsGuaranteed Obligations has been forged or otherwise is irregular or not genuine or authentic;
(v) any full or partial release of the liability of WII or any Borrower on the Guaranteed Obligations or any part thereof, or any termination other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee, or assure the payment of the Guaranteed Obligations or any part thereof; it being recognized, acknowledged, and agreed by WII that WII may be required to pay the Guaranteed Obligations in full without assistance or support of any such relationshipother Person, and that WII has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that any other Person shall be liable to perform the Guaranteed Obligations or that the Administrative Agent or any Lender shall look to any other Person to perform the Guaranteed Obligations;
(jvi) the taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release release, surrender, exchange, subordination, deterioration, waste, loss or discharge by operation impairment of law any collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the BorrowerGuaranteed Obligations;
(viii) the failure of the Administrative Agent, the Guarantor Lenders, the Issuing Bank or any other guarantor Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(ix) the fact that any collateral, security or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations from shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any obligation other Lien; it being recognized and agreed by WII that WII is not entering into this Guaranty in reliance on, or agreement contained in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the Loan Documentscollateral for the Guaranteed Obligations;
(x) any payment by any Borrower or WII to the Administrative Agent or any Lender is held to constitute a preference under bankruptcy or insolvency laws, or for any other reason either the Administrative Agent or any Lender is required to refund such payment or pay such amount to any Borrower, WII or any other Person; or
(kxi) any other action taken or omitted to be taken with respect to this Agreement, any other Loan Document, the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices WII or increases the likelihood that WII shall be required to pay the Guaranteed Obligations pursuant to the terms hereof; it being the unambiguous and unequivocal intention of WII that WII shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, happening or event, action, or omission whatsoever, whether similar contemplated or dissimilar to the foregoing uncontemplated, and whether foreseen or unforeseennot otherwise or particularly described herein, which otherwise might constitute a legal or equitable defense or discharge except for the full and final payment and satisfaction of the liabilities Guaranteed Obligations after the termination of a guarantor or surety or which otherwise might limit recourse against all of the Borrower or the Guarantor Commitments.
(b) WII further agrees that, to the fullest extent permitted by law, as between WII, or the one hand, and the Lenders and the Administrative Agent, on the other hand, (i) the maturity of the Obligations may be accelerated as provided in Section 9.01 for the purposes of this Guaranty, notwithstanding any stay, injunction or other prohibition preventing the acceleration of the Obligations as against any Borrower and (ii) in the event of any purported acceleration (whether by declaration or automatic) of the Obligations as provided in Section 9.01, the Obligations (whether or not due and payable) shall forthwith become due and payable by WII for the purpose of this Guaranty.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by Guarantor This Guaranty shall in all respects be a primary obligationcontinuing, shall not be subject to any counterclaim (other than a mandatory counterclaim)primary, set-off, abatement, deferment or defense (other than the defense absolute and unconditional guaranty of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, prompt and complete payment and shall remain in full force and effect without regard tountil the full and final payment and performance of the Guaranteed Obligations and Guarantor s obligations hereunder. The Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of the Participation Agreement and each other Transaction Document under which they arise, regardless of any law, regulation or order now or hereafter in effect in any jurisdiction affecting any of such terms or the rights of the Beneficiaries with respect thereto. The liability of the Guarantor under this Guaranty shall be absolute, unconditional and irrevocable, irrespective of:
(1) any lack of validity, legality or enforceability of the Participation Agreement, any Certificate or any other Transaction Document;
(2) the failure of any Beneficiary
(a) to assert any claim or demand or to enforce any right or remedy against Deepwater or any other Person (including any guarantor (including the Guarantor)) under the provisions of the Participation Agreement, any Certificate, any other Transaction Document or otherwise, or
(b) to exercise any right or remedy against any guarantor (including the Guarantor) of, or collateral securing, any obligations of Deepwater or any other Person;
(3) any change in the time, manner or place of payment of, or in any other term of, all or any of the Guaranteed Obligations or the obligations of any guarantor (including the Guarantor), or any other extension, compromise or renewal of any Guaranteed Obligation or the obligations of any guarantor (including the Guarantor);
(4) any reduction, limitation, impairment or termination of any Guaranteed Obligations or the obligations of any guarantor (including the Guarantor) for any reason, including any claim of waiver, release, surrender, alteration or compromise, and shall not be releasedsubject to (and the Guarantor hereby waives any right to or claim of) any defense or setoff, discharged counterclaim, recoupment or affected in termination whatsoever by reason of the invalidity, illegality, nongenuineness, irregularity, compromise, unenforceability of, or any way byother event or occurrence affecting, any circumstance Guaranteed Obligations or condition the obligations of any guarantor (whether including the Guarantor) or not Guarantor shall have any knowledge thereof):otherwise, other than the payment in full in cash or satisfaction or discharge in full of such Guaranteed Obligation;
(a5) any lack of validity amendment to, rescission, waiver, or enforceability of other modification of, or any consent to departure from, any of the Loan Documentsterms of the Participation Agreement, any Certificate or any other Transaction Document;
(b6) any terminationaddition, amendmentexchange, modification release, surrender or non-perfection of any collateral, or any amendment to or waiver or release or addition of, or consent to departure from, any other change in guaranty held by any Beneficiary securing any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Guaranteed Obligations or the Lender to conform or comply with any term obligations of any of guarantor (including the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan AgreementGuarantor);
(e7) any waiverother circumstance which might otherwise constitute a defense available to, compromiseor a legal or equitable discharge of, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan DocumentsDeepwater, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, surety or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documentsguarantor; or
(k) any other occurrence8) the condition, circumstancedesign, happening operation, fitness for use or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge seaworthiness of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower Drillship or the Guarantor failure of the Drillship to be constructed in accordance with the fullest extent permitted by lawConstruction Contract.
Appears in 1 contract
Samples: Guaranty (R&b Falcon Corp)
Continuing Guaranty. The Guarantor agrees that performance of the Borrower’s Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Borrower’s Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including without limitation:
(a) a. any lack of validity or enforceability of any of the Loan Documents, unless such lack of validity or enforceability arises from Lender’s willful misconduct;
(b) b. any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) c. any furnishing, exchange, substitution or release of any collateral securing repayment of the LoanLoans, or any failure to perfect any lien in such collateral;
(d) d. any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Borrower’s Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) e. any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) f. any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of Lender unless the act or failure to act is found to be gross negligence or willful misconduct on the part of Lender;
(g) g. any voluntary or involuntary bankruptcy, insolvencyinsolvency, reorganization, reorganization arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor Borrower or any other guarantor of the Borrower’s Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) h. any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Borrower’s Obligations to any other person or entity;
(i) i. any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, Guarantor or any other guarantor of the Borrower’s Obligations, or any termination of any such relationship;
(j) j. any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Borrower’s Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) k. any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Samples: Guaranty of Payment and Completion (Horizon Group Properties Inc)
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
(a) Each Subsidiary Guarantor guarantees that the Borrower Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement and the other Loan Documents. Each Subsidiary Guarantor agrees that, to the maximum extent permitted by applicable law, the Borrower Guaranteed Obligations and the Loan Documents may be extended or renewed, and Loans repaid and reborrowed in whole or in part, without notice to or assent by such Subsidiary Guarantor, and that it will remain bound upon this Subsidiary Guarantors Guaranty notwithstanding any lack of validity extension, renewal or enforceability other alteration of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Borrower Guaranteed Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any repayment and reborrowing of Loans. To the maximum extent permitted by applicable law, except as otherwise expressly provided in this Agreement or any other action Loan Document to which such Subsidiary Guarantor is a party, the obligations of each Subsidiary Guarantor under this Subsidiary Guarantors Guaranty shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms hereof under any circumstances whatsoever, including:
(i) any modification, amendment, supplement, renewal, extension for any period, increase, decrease, alteration or inaction on the rearrangement of all or any part of the LenderBorrower Guaranteed Obligations or this Agreement or any other Loan Document executed in connection herewith, or any contract or understanding among either Borrower, any Subsidiary Guarantor, the Administrative Agent and/or the Lenders, or any other Person, pertaining to the Borrower Guaranteed Obligations;
(gii) any voluntary adjustment, indulgence, forbearance or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for compromise that might be granted or given by the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities Lenders to either Borrower or similar events or proceedings with respect to the Borrower, the any Subsidiary Guarantor or any other guarantor of Person liable on the Borrower Guaranteed Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(hiii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of either Borrower, any merger Subsidiary Guarantor or consolidation any other Person at any time liable for the payment of all or part of the Borrower into Guaranteed Obligations; or with any entitydissolution of either Borrower or any Subsidiary Guarantor, or any sale, lease or transfer of any or all of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the either Borrower or any change in the relationship between the Borrower, the Subsidiary Guarantor, or any other guarantor changes in the holders of the equity in either Borrower or any Subsidiary Guarantor; or any reorganization of either Borrower or any Subsidiary Guarantor;
(iv) the invalidity, illegality or unenforceability of all or any part of the Borrower Guaranteed Obligations, or any termination document or agreement executed in connection with the Borrower Guaranteed Obligations, for any reason whatsoever, including the fact that (A) the Borrower Guaranteed Obligations, or any part thereof, exceeds the amount permitted by law, (B) the act of creating the Borrower Guaranteed Obligations or any part thereof is ultra xxxxx, (C) the officers or representatives executing the documents or otherwise creating the Borrower Guaranteed Obligations acted in excess of their authority, (D) the Borrower Guaranteed Obligations or any part thereof violate applicable usury laws, (E) either Borrower or any Subsidiary Guarantor has valid defenses, claims and offsets (whether at law or in equity, by agreement or by statute) which render the Borrower Guaranteed Obligations wholly or partially uncollectible from either Borrower or such Subsidiary Guarantor, (F) the creation, performance or repayment of the Borrower Guaranteed Obligations (or execution, delivery and performance of any such relationshipdocument or instrument representing part of the Borrower Guaranteed Obligations or executed in connection with the Borrower Guaranteed Obligations, or given to secure the repayment of the Borrower Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or (G) this Agreement, any other Loan Document, or any other document or instrument pertaining to the Borrower Guaranteed Obligations has been forged or otherwise is irregular or not genuine or authentic;
(jv) any full or partial release or discharge by operation of law of the Borrowerliability of either Borrower or any Subsidiary Guarantor on the Borrower Guaranteed Obligations or any part thereof, the Guarantor or any other guarantor Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Borrower Guaranteed Obligations from or any obligation part thereof; it being recognized, acknowledged and agreed by each Subsidiary Guarantor that such Subsidiary Guarantor may be required to pay the Borrower Guaranteed Obligations in full without assistance or support of any other Person, and such Subsidiary Guarantor has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement contained that any other Person will be liable to perform the Borrower Guaranteed Obligations, or that the Administrative Agent or any Lender will look to any other Person to perform the Borrower Guaranteed Obligations;
(vi) the taking or accepting of any security, collateral or guaranty, or other assurance of payment, for all or any part of the Borrower Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment of any collateral, property or security, at any time hereafter existing in connection with, or assuring or securing payment of, all or any part of the Borrower Guaranteed Obligations;
(viii) the failure of the Administrative Agent, the Lenders or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement or other handling or treatment of all or any part of such collateral, property or security;
(ix) the fact that any collateral, security or Lien contemplated or intended to be given, created or granted as security for the repayment of any of the Loan DocumentsBorrower Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien; it being recognized and agreed by each Subsidiary Guarantor that such Subsidiary Guarantor is not entering into this Subsidiary Guarantors Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the collateral for the Borrower Guaranteed Obligations;
(x) any payment by the Company or any Subsidiary Guarantor to the Administrative Agent or any Lender is held to constitute a preference under bankruptcy laws, or for any reason either the Administrative Agent or any Lender is required to refund such payment or pay such amount to the Company or any other Person; or
(kxi) any other action taken or omitted to be taken with respect to this Agreement, any other Loan Document, the Borrower Guaranteed Obligations, or any security and collateral therefor, whether or not such action or omission prejudices any Subsidiary Guarantor or increases the likelihood that any Subsidiary Guarantor will be required to pay the Borrower Guaranteed Obligations pursuant to the terms hereof; it being the unambiguous and unequivocal intention of each Subsidiary Guarantor that such Subsidiary Guarantor shall be obligated to pay the Borrower Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, happening or event, action, or omission whatsoever, whether similar contemplated or dissimilar to the foregoing uncontemplated, and whether foreseen or unforeseennot otherwise or particularly described herein, which otherwise might constitute a legal or equitable defense or discharge except for the full and final payment and satisfaction of the liabilities Borrower Guaranteed Obligations after the termination of a guarantor the Commitments of all Lenders and the expiration or surety or which otherwise might limit recourse against termination of all Letters of Credit.
(b) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Lenders and the Administrative Agent, on the other hand, (i) the maturity of the Borrower Guaranteed Obligations may be accelerated as provided in Article VII for the purposes of this Subsidiary Guarantors Guaranty, notwithstanding any stay, injunction or other prohibition preventing such acceleration of the Borrower Guaranteed Obligations, and (ii) in the event of any acceleration of the Obligations as provided in Article VII, the Borrower Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by each Subsidiary Guarantor to for the fullest extent permitted by lawpurpose of this Subsidiary Guarantors Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Kinder Morgan Bulk Terminals Inc)
Continuing Guaranty. The Each Guarantor agrees that performance of the Guarantors' Obligations by Guarantor shall be a primary obligationobligations of such Guarantor, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that such Guarantor may have against the Lendereither Purchaser, the Borrower, any other guarantor of the Obligations Company or any other person or entityPerson, and shall remain in full force and effect without regard to, and shall not be released, discharged discharged, limited or affected in any way by, by any circumstance or condition (whether or not such Guarantor shall have any knowledge thereof):), including, without limitation:
(a) any lack of validity or enforceability of any of the Loan DocumentsInvestment Agreements;
(b) any termination, restatement, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described thereinInvestment Agreements;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the LoanTotal Collateral, or any failure to perfect any lien Lien in such collateralany of the Total Collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations Company or the Lender either Purchaser to conform or comply with any term of any of the Loan Documents Investment Agreements or any failure of the Lender either Purchaser to give notice of any Event of Default (as such term is defined in the Loan Agreement)Default;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan DocumentsInvestment Agreements;
(f) any action or inaction by the Lender either Purchaser under or in respect of any of the Loan DocumentsInvestment Agreements, any failure, lack of diligence, omission or delay on the part of the Lender either Purchaser to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it either Purchaser in any of the Loan DocumentsInvestment Agreements, or any other action or inaction on the part of the Lendereither Purchaser;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrowerany Guarantor, the Guarantor Company or any other guarantor of the Obligations, as applicable, person or entity or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of any Guarantor, the Borrower Company or any other person or entity into or with any person or entity, or any sale, lease or transfer of any of the assets of the Borrowerany Guarantor, the Guarantor Company or any other guarantor of the Obligations person or entity to any other person or entity;
(i) any change in the ownership of any of the Borrower equity interests of the Company or any change in the relationship between any Guarantor and the Borrower, the Guarantor, or any other guarantor of the ObligationsCompany, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the any other Guarantor or any other guarantor of the Obligations Company from any obligation or agreement contained in any of the Loan DocumentsInvestment Agreements; orand
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower any Guarantor or the Guarantor to the fullest extent permitted by lawGuarantors.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that performance (a) this is a continuing guaranty, (b) the Guaranteed Obligations hereunder shall extend to each and every extension or renewal, if any, of the Note, regardless of whether the Guaranteed Obligations by Guarantor shall may, in successive transactions, be a primary obligationpaid, shall not be subject repaid, advanced, or renewed from time to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entitytime, and (c) this Guaranty shall remain in full force and effect without regard tountil the Guaranteed Obligations are paid in full and have been completely satisfied, and shall not be released, discharged impaired or affected in any way by, or be deemed to be satisfied by, nor shall Guarantor or the Collateral be exonerated, discharged, or released by, any circumstance of the following events:
12.1 Lender's exercise or condition (whether enforcement of, or not Guarantor shall have failure or delay in exercising or enforcing, legal proceedings to collect the Obligations or any knowledge thereof):
(a) any lack of validity power, right, or enforceability of remedy with respect to any of the Loan Documents;
Obligations, the Collateral, or the Guaranteed Obligations including: (bi) any terminationaction or inaction of Lender to perfect, amendmentprotect, modification or other change enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Loan Documents, including, without limitationCollateral or any suspension of Lender's right to enforce against Borrower any Obligations, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the LoanGuaranteed Obligations, or any failure to perfect any security interest in or lien in such collateral;
upon the Collateral; or (diii) any failurechange in the time, omission manner, or delay on the part place of the Borrowerpayment of, the Guarantoror in any other term of, any other guarantor or all of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan DocumentsGuaranteed Obligations, or any other action amendment to or inaction on the part waiver of the LenderNote, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Obligations or the Guaranteed Obligations;
(g) any voluntary or involuntary 12.2 insolvency, bankruptcy, insolvency, reorganization, arrangement, readjustmentadjustment, composition, assignment for the benefit of creditors, composition, receivershipappointment of a receiver or trustee for all or any part of Borrower's or Guarantor's assets, liquidation, marshaling winding-up, or dissolution of assets and liabilities Borrower or similar events Guarantor;
12.3 any limitation, discharge, cessation, or proceedings with respect to the Borrower, the Guarantor or any other guarantor partial satisfaction of the Obligations, as applicableof any Guaranteed 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 whole or in part, the Note, this Guaranty, any other Loan Document, or any of their respective property or creditors, or other document evidencing any action taken by any trustee or receiver or by any court in any such proceedingObligations;
(h) 12.4 any merger merger, acquisition, consolidation or consolidation change in structure of the Borrower into or with any entity, Guarantor; or any sale, lease lease, transfer, or transfer other disposition of any or all of the assets or shares of Borrower or Guarantor;
12.5 any assignment or other transfer, in whole or in part, of Lender's interest in and rights under the Borrower, the Guarantor Note or any other guarantor Loan Document, including this Guaranty, or of Lender's interest in the Obligations to any other person Obligations, the Guaranteed Obligations, or entitythe Collateral;
12.6 any claim, defense, counterclaim, or set-off, other than (i) any change in the ownership defense of prior performance or (ii) any defense based on any applicable provision of the Uniform Commercial Code requiring that the Collateral be disposed of in a commercially reasonable manner, which Borrower or Guarantor may have or assert, including any change in defense of incapacity, disability, or lack of corporate or other authority to execute any documents relating to the relationship between the BorrowerObligations, the GuarantorGuaranteed Obligations, or the Collateral;
12.7 any other guarantor cancellation, renunciation, or surrender of any debt instrument evidencing the Obligations or the Guaranteed Obligations;
12.8 Lender's vote, claim, distribution, election, acceptance, action, or inaction in any bankruptcy or reorganization case related to the Collateral, the Obligations, or any termination of any such relationshipthe Guaranteed Obligations;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or 12.9 any other guarantor of the Obligations from any obligation action or agreement contained in any of the Loan Documents; or
(k) any other occurrencecircumstances that might otherwise constitute a defense available to, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense discharge of, any surety, guarantor or discharge pledgor; or
12.10 the fact that any of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower Obligations or the Guaranteed Obligations may become due or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor to that the fullest extent permitted by lawGuaranteed Obligations shall not be discharged.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that performance of This Guaranty is a continuing guaranty, and the Obligations obligations, undertakings and conditions to be performed or observed by Guarantor shall be a primary obligation, under this Guaranty shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment affected or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor impaired by reason of the Obligations or any other person or entityhappening from time to time of the following with respect to the Documents, and shall remain in full force and effect all without regard notice to, and shall not be releasedor the further consent of, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
Guarantor: (a) any lack the waiver by Lessor of validity the observance or enforceability performance by Lessee or Guarantor of any of the Loan Documents;
(b) any terminationobligations, amendmentundertakings, modification conditions or other change provisions contained in any of the Loan Documents, except to the extent of such waiver; (b) the extension, in whole or in part, of the time for payment of any amount owing or payable under the Documents; (c) the modification or amendment (whether material or otherwise) of any of the obligations of Lessee under, or any other provisions of, any of the Documents, except to the extent of such modification or amendment; (d) the taking or the omission of any of the actions referred to in any of the Documents (including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release giving of any collateral securing repayment of the Loan, or any failure consent referred to perfect any lien in such collateral;
therein); (de) any failure, omission omission, delay or delay lack on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender Lessor to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lienprovision of the Documents, security interest, including any right, power or remedy conferred on it Lessor in any of the Loan Documents, Documents or any other action or inaction on the part of Lessor granting indulgence or extension in any form; (f) the Lender;
assignment to or assumption by any third party of any or all of the rights or obligations of Lessee under all or any of the Documents; (g) the release or discharge of Lessee from the performance or observance of any voluntary obligation, undertaking or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect condition to the Borrower, the Guarantor or be performed by Lessee under any other guarantor of the ObligationsDocuments by operation of law, as applicable, including any rejection or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer disaffirmance of any of the assets of Documents in any bankruptcy or similar proceedings; (h) the Borrower, the Guarantor receipt and acceptance by Lessor or any other guarantor Person of notes, checks or other instruments for the Obligations to any other person or entity;
payment of money and extensions and renewals thereof; (i) any change action, inaction or election of remedies by Lessor which results in the ownership any impairment or destruction of the Borrower or any change in the relationship between the Borrower, the subrogation rights of Guarantor, or any rights of Guarantor to proceed against any other guarantor of the Obligations, or any termination of any such relationship;
Person for reimbursement; (j) any release or discharge by operation of setoff, defense, counterclaim, abatement, recoupment, reduction, change in law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation event or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, circumstance which might otherwise might constitute a legal or equitable discharge or defense of a guarantor, indemnitor or discharge surety under the laws of the liabilities Commonwealth of a guarantor Pennsylvania, the states in which the Properties are located or surety any other jurisdiction; and (k) the renewal of any of the Obligations. Notwithstanding the foregoing or which otherwise might limit recourse against the Borrower or the Guarantor anything contained in this Guaranty to the fullest contrary, Guarantor shall have the right to assert all claims and defenses hereunder and under the Lease to the extent that Xxxxxx is permitted such claim or defense, with respect to the Lease, by applicable law.
Appears in 1 contract
Samples: Unconditional Guaranty of Payment and Performance (Ampco Pittsburgh Corp)
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
(a) The Company guarantees that the Subsidiary Borrower Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement and the other Loan Documents. The Company agrees that, to the maximum extent permitted by applicable law, the Subsidiary Borrower Guaranteed Obligations and Loan Documents to which the Subsidiary Borrower is a party may be extended or renewed, and indebtedness thereunder repaid and reborrowed in whole or in part, without notice to or assent by the Company, and that it will remain bound upon this Company Guaranty notwithstanding any lack of validity extension, renewal or enforceability other alteration of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Subsidiary Borrower Guaranteed Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any repayment and reborrowing of Loans. To the maximum extent permitted by applicable law, except as otherwise expressly provided in this Agreement or any other action Loan Document to which the Company is a party, the obligations of the Company under this Company Guaranty shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms hereof under any circumstances whatsoever, including:
(i) any modification, amendment, supplement, renewal, extension for any period, increase, decrease, alteration or inaction on the rearrangement of all or any part of the LenderSubsidiary Borrower Guaranteed Obligations, or of this Agreement or any other Loan Document executed in connection herewith, or any contract or understanding among the Company, the Subsidiary Borrower, any Subsidiary Guarantor, the Administrative Agent and/or the Lenders, or any other Person, pertaining to the Subsidiary Borrower Guaranteed Obligations;
(gii) any voluntary adjustment, indulgence, forbearance or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for compromise that might be granted or given by the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect Lenders to the Borrower, the Company or any Subsidiary Guarantor or any other guarantor Person liable on the Subsidiary Borrower Guaranteed Obligations;
(iii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of the Company, the Subsidiary Borrower, any Subsidiary Guarantor or any other Person at any time liable for the payment of all or part of the Subsidiary Borrower Guaranteed Obligations; or any dissolution of the Company, as applicablethe Subsidiary Borrower, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entitySubsidiary Guarantor, or any sale, lease or transfer of any or all of the assets of the Company, the Subsidiary Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Subsidiary Guarantor, or any other guarantor changes in the shareholders of the Company, the Subsidiary Borrower, or any Subsidiary Guarantor; or any reorganization of the Company, the Subsidiary Borrower, or any Subsidiary Guarantor;
(iv) the invalidity, illegality or unenforceability of all or any part of the Subsidiary Borrower Guaranteed Obligations, or any termination document or agreement executed in connection with the Subsidiary Borrower Guaranteed Obligations, for any reason whatsoever, including the fact that (A) the Subsidiary Borrower Guaranteed Obligations, or any part thereof, exceeds the amount permitted by law, (B) the act of creating the Subsidiary Borrower Guaranteed Obligations or any part thereof is ultra xxxxx, (C) the officers or representatives executing the documents or otherwise creating the Subsidiary Borrower Guaranteed Obligations acted in excess of their authority, (D) the Subsidiary Borrower Guaranteed Obligations or any part thereof violate applicable usury laws, (E) the Company, the Subsidiary Borrower or any Subsidiary Guarantor has valid defenses, claims and offsets (whether at law or in equity, by agreement or by statute) which render the Subsidiary Borrower Guaranteed Obligations wholly or partially uncollectible from the Company, the Subsidiary Borrower or such Subsidiary Guarantor, (F) the creation, performance or repayment of the Subsidiary Borrower Guaranteed Obligations (or execution, delivery and performance of any such relationshipdocument or instrument representing part of the Subsidiary Borrower Guaranteed Obligations or executed in connection with the Subsidiary Borrower Guaranteed Obligations, or given to secure the repayment of the Subsidiary Borrower Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or (G) this Agreement, any other Loan Document, or any other document or instrument pertaining to the Subsidiary Borrower Guaranteed Obligations has been forged or otherwise is irregular or not genuine or authentic;
(jv) any full or partial release or discharge by operation of law of the Borrowerliability of the Company, the Subsidiary Borrower or any Subsidiary Guarantor on the Subsidiary Borrower Guaranteed Obligations or any part thereof, or any other guarantor Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Subsidiary Borrower Guaranteed Obligations from or any obligation part thereof; it being recognized, acknowledged and agreed by the Company that the Company may be required to pay the Subsidiary Borrower Guaranteed Obligations in full without assistance or support of any other Person, and the Company has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement contained that any other Person will be liable to perform the Subsidiary Borrower Guaranteed Obligations, or that the Administrative Agent or any Lender will look to any other Person to perform the Subsidiary Borrower Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Subsidiary Borrower Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment of any collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Subsidiary Borrower Guaranteed Obligations;
(viii) the failure of the Administrative Agent, the Lenders or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(ix) the fact that any collateral, security or Lien contemplated or intended to be given, created or granted as security for the repayment of the Subsidiary Borrower Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien; it being recognized and agreed by the Company that the Company is not entering into this Company Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the Loan Documentscollateral for the Subsidiary Borrower Guaranteed Obligations;
(x) any payment by the Subsidiary Borrower or the Company to the Administrative Agent or any Lender is held to constitute a preference under bankruptcy laws, or for any other reason either the Administrative Agent or any Lender is required to refund such payment or pay such amount to the Subsidiary Borrower or any other Person; or
(kxi) any other action taken or omitted to be taken with respect to this Agreement, any other Loan Document, the Subsidiary Borrower Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices the Company or increases the likelihood that the Company will be required to pay the Subsidiary Borrower Guaranteed Obligations pursuant to the terms hereof; it being the unambiguous and unequivocal intention of the Company that the Company shall be obligated to pay the Subsidiary Borrower Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, happening or event, action, or omission whatsoever, whether similar contemplated or dissimilar to the foregoing uncontemplated, and whether foreseen or unforeseennot otherwise or particularly described herein, which otherwise might constitute a legal or equitable defense or discharge except for the full and final payment and satisfaction of the liabilities Subsidiary Borrower Guaranteed Obligations after the termination of a guarantor the Commitments of all Lenders and the expiration or surety or which otherwise might limit recourse against termination of the Borrower or the Guarantor Existing Letter of Credit.
(b) The Company further agrees that, to the fullest extent permitted by law, as between the Company, on the one hand, and the Lenders and the Administrative Agent, on the other hand, (i) the maturity of the Subsidiary Borrower Guaranteed Obligations may be accelerated as provided in Article VII for the purposes of this Company Guaranty, notwithstanding any stay, injunction or other prohibition preventing such acceleration of the Subsidiary Borrower Guaranteed Obligations, and (ii) in the event of any acceleration of the Subsidiary Borrower Guaranteed Obligations as provided in Article VII, the Subsidiary Borrower Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Company for the purpose of this Company Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Kinder Morgan Energy Partners L P)
Continuing Guaranty. The Each Guarantor guarantees that the ------------------- Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement, the Notes and the other Loan Documents. Each Guarantor agrees that performance the Guaranteed Obligations and Loan Documents may be extended or renewed, and Loans repaid and reborrowed in whole or in part, without notice to or assent by such Guarantor, and that it will remain bound upon this Guaranty notwithstanding any extension, renewal or other alteration of any Guaranteed Obligations or Loan Documents, or any repayment and reborrowing of Loans. To the Obligations maximum extent permitted by applicable law, the obligations of each Guarantor under this Guaranty shall be a primary obligationabsolute, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entityunconditional and irrevocable, and shall remain be performed strictly in full force and effect without regard toaccordance with the terms hereof under any circumstances whatsoever, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):including:
(a) any lack of validity extension, renewal, modification, settlement, compromise, waiver or enforceability release in respect of any of the Loan DocumentsGuaranteed Obligations;
(b) any terminationextension, renewal, amendment, modification modification, rescission, waiver or other change release in respect of any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishingrelease, exchange, substitution substitution, non-perfection or invalidity of, or failure to exercise rights or remedies with respect to, any direct or indirect security for any Guaranteed Obligations, including the release of any collateral securing repayment of the Loan, Guarantor or other Person liable on any failure to perfect any lien in such collateralGuaranteed Obligations;
(d) any failurechange in the corporate existence, omission structure or delay on the part ownership of the Borrower, any Guarantor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Borrower, such Guarantor, any other guarantor of the Obligations Guarantor or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)their respective assets;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance the existence of any of claim, defense, setoff or other rights or remedies which such Guarantor at any time may have against the obligations Borrower, or agreements contained the Borrower or such Guarantor may have at any time against the Administrative Agent, any Lender, any other Guarantor or any other Person, whether in any of connection with this Guaranty, the Loan Documents, the transactions contemplated thereby or any other transaction other than by the payment in full by the Borrower of the Guaranteed Obligations after the termination of the Commitments of the Lenders;
(f) any action invalidity or inaction by the Lender under unenforceability for any reason of this Agreement or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the other Loan Documents, or any provision of law purporting to prohibit the payment or performance by the Borrower, such Guarantor or any other action or inaction on the part Guarantor of the Guaranteed Obligations or Loan Documents, or of any other obligation to the Administrative Agent or any Lender;; or
(g) any voluntary other circumstances or involuntary bankruptcyhappening whatsoever, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities whether or not similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawforgoing.
Appears in 1 contract
Samples: Credit Agreement (Us Concrete Inc)
Continuing Guaranty. The Guarantor agrees that the performance of the Obligations by the Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that the Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not the Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, Guarantor or any other guarantor of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan AgreementNote);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, Guarantor or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan DocumentsDocuments (except as expressly set forth in the Note); or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Samples: Limited Guaranty of Payment (Grubb & Ellis Healthcare REIT, Inc.)
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by the Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that the Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not the Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, Guarantor or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Samples: Guaranty of Payment (Inland American Real Estate Trust, Inc.)
Continuing Guaranty. The Guarantor agrees that the obligations of Guarantor to Landlord hereunder constitute an absolute, present, primary, continuing, irrevocable, unlimited, unconditional guaranty of payment and performance and, without limitation, is not conditioned or contingent upon any effort to attempt to seek payment or performance from any other person or entity (whether or not pursuant to this Guaranty) or upon any other condition or contingency. In addition, the obligations of the Obligations by Guarantor shall be a primary obligation, hereunder shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, suspension, deduction, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entitydefense, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, by any circumstance circumstances or condition (whether or not Guarantor shall have any knowledge thereof):), including:
(a) any lack of validity or enforceability of any of the Loan DocumentsLease;
(b) any termination, termination of the Lease in accordance with its terms or amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described thereinLease;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the BorrowerTenant, the Guarantor, any other guarantor of the Obligations Guarantor or the Lender Landlord to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)Lease;
(ed) any waiver, compromise, release, settlement settlement, forbearance or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan DocumentsLease;
(fe) any action or inaction by the Lender Landlord under or in respect of any of the Loan DocumentsLease, any failure, lack of diligence, omission or delay on the part of the Lender Landlord to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it Landlord in any of the Loan DocumentsLease, or any other action or inaction on the part of the LenderLandlord;
(gf) the death or incapacity of Guarantor, as applicable, or any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor Tenant or any other guarantor of the ObligationsGuarantor, as applicable, or any of their respective property or creditorsproperties, or any action taken by any trustee or receiver or by any court in any such proceeding;
(hg) any merger or consolidation of the Borrower Tenant into or with any other entity, or any sale, lease or transfer of any of the assets of the Borrower, the Tenant or Guarantor or any other guarantor of the Obligations to any other person or entity;
(ih) any change in the ownership of the Borrower 100% of issued and outstanding stock owned in Tenant by Guarantor or any other change in the relationship between the Borrower, the Tenant and Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(ji) to the extent permitted by law, any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations Tenant from any obligation or agreement contained in the Lease;
(j) any conveyance, mortgage, or other transfer of all or any part of Tenant’s interest in the Premises, or all or part of Guarantor’s interest therein;
(k) any assumption by any person of any or all of Tenant’s obligations under the Lease, or Tenant’s assignment of any or all of its interest in the Lease (which assignment is not permitted by the Lease without Landlord’s written consent);
(l) the power or authority or lack thereof of Tenant to execute, acknowledge or deliver the Lease;
(m) any defenses whatsoever that Tenant may or might have to the payment of the Loan DocumentsMonetary Obligations, except for the payment thereof;
(n) the existence or non-existence of Tenant as a legal entity;
(o) any sale or assignment by Landlord of the Premises, this Guaranty, and/or the Lease (including any assignment by Landlord to any Mortgagee consistent with the provisions of Paragraph 10 of this Guaranty);
(p) any default by Tenant under the Lease or any right of setoff, counterclaim or defense (other than payment in full of the Monetary Obligations in accordance with the terms of the Lease) that Guarantor may or might have to its respective undertaking, liabilities, and obligations hereunder, each and every such defense being hereby waived by Guarantor; or
(kq) to the extent permitted by law, any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower Tenant or the Guarantor to the fullest extent permitted by lawGuarantor.
Appears in 1 contract
Samples: Lease Agreement (Aar Corp)
Continuing Guaranty. The Guarantor agrees that performance the obligations of the Obligations by Guarantor pursuant to Section 2 above shall be a primary obligationobligations, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense based upon any claim that the Guarantor may have against the Sellers (other than the defense of payment) based upon any claim that Guarantor may the Obligations have against the Lender, the Borroweralready been paid or performed), any other guarantor of the Obligations or any other person or entityPerson, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, by any circumstance or condition (whether or not the Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity amendment, modification, extension, or enforceability of any of other change in the Loan DocumentsAsset Purchase Agreement;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of for the LoanObligations, or any failure to perfect any lien in on any of such collateral;
(dc) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations Sellers or the Lender Guarantor to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Asset Purchase Agreement);
(ed) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan DocumentsAsset Purchase Agreement;
(fe) any action or inaction by the Lender Sellers under or in respect of any of the Loan DocumentsAsset Purchase Agreement, any failure, lack of diligence, omission or delay on the part of the Lender Sellers to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it the Sellers in any of the Loan DocumentsAsset Purchase Agreement, or any other action or inaction on the part of the LenderSellers;
(gf) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, Sellers or the Guarantor or any other guarantor of the ObligationsGuarantor, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceedingproceeding including, without limitation, any proceeding under Title 11 of the United States Code (11 U.S.C. Section 101 et seq.), as amended (the “Bankruptcy Code”);
(hg) any merger or consolidation of any of the Borrower Sellers into or with any person or entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations Sellers to any other person or entity;
(ih) any change in the ownership of the Borrower equity of the Sellers or any change in the relationship between the Borrower, Sellers or the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(ji) any release or discharge by operation of law of the Borrower, the Guarantor Sellers or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan DocumentsAsset Purchase Agreement; or
(kj) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower Sellers or the Guarantor to the fullest extent permitted by lawGuarantor.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ruths Chris Steak House, Inc.)
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the LenderLandlord (however, the BorrowerGuarantor may pursue a separate action against Tenant, any other guarantor of the Obligations or any other person or entity), and this Guaranty shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including without limitation:
(a) a. any lack of validity or enforceability of any of the Loan DocumentsLease Agreement;
(b) b. any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described thereinLease Agreement;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) c. any failure, omission or delay on the part of the BorrowerTenant, the Guarantor, any other guarantor of the Obligations or the Lender Landlord to conform or comply with any term of any of the Loan Documents Lease Agreement or any failure of the Lender Landlord to give notice of any Event of Default (as such term is defined in the Loan Lease Agreement);
(e) d. any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan DocumentsLease Agreement;
(f) e. any action or inaction by the Lender Landlord under or in respect of any of the Loan DocumentsLease Agreement, any failure, lack of diligence, omission or delay on the part of the Lender Landlord to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan DocumentsLease Agreement, or any other action or inaction on the part of the LenderLandlord;
(g) f. any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the BorrowerTenant, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) g. any merger or consolidation of the Borrower Tenant into or with any entity, or any sale, lease or transfer of any of the assets of the BorrowerTenant, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) h. any change in the ownership of the Borrower Tenant or any change in the relationship between the BorrowerTenant, the Guarantor, Guarantor or any other guarantor of the Obligations, or any termination of any such relationship;
(j) i. any release or discharge by operation of law of the BorrowerTenant, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in the Lease Agreement;
j. any defense arising out of the Loan Documentsany disability of Tenant; or
(k) k. any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower Tenant or the Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Samples: Guaranty of Lease (Cargo Connection Logistics Holding, Inc.)
Continuing Guaranty. The Each Guarantor agrees that performance the Guaranteed Amount and Loan Documents may be extended or renewed, and the Revolving Credit Loans repaid and reborrowed in whole or in part, without notice to or assent by such Guarantor, and that it will remain bound upon this Guaranty notwithstanding any extension, renewal or other alteration of any Guaranteed Amount or Loan Documents, or any repayment and reborrowing of the Obligations by Revolving Credit Loans. Each Guarantor waives notice of acceptance of this Guaranty, presentation, demand, protest, notice of protest for nonpayment, diligence in bringing suits against any Person liable on any Guaranteed Amount, and any other notices or defenses of any kind. The obligations of each Guarantor under this Guaranty shall be a primary obligationabsolute, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entityunconditional and irrevocable, and shall remain be performed strictly in full force and effect accordance with the terms hereof under any circumstances whatsoever, including without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):limitation:
(a) any lack of validity extension, renewal, modification, settlement, compromise, waiver or enforceability release in respect of any Guaranteed Amount, including any increase, reduction or termination of the Loan DocumentsCommitment;
(b) any terminationextension, renewal, amendment, modification modification, rescission, waiver or other change release in respect of any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishingrelease, exchange, substitution substitution, non-perfection or invalidity of, or failure to exercise rights with respect to, any direct or indirect security for any Guaranteed Amount, including the release of any collateral securing repayment of the Loan, Guarantor or other Person liable on any failure to perfect any lien in such collateralGuaranteed Amount;
(d) any failurechange in the corporate existence, omission structure or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender to conform or comply with any term ownership of any of the Loan Documents Borrowers or any failure Guarantor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting any of the Lender to give notice Borrowers or any Guarantor or any of any Event of Default (as such term is defined in the Loan Agreement)their assets;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance the existence of any of the obligations claim, defense, set-off or agreements contained in other rights or remedies which any of Borrowers or any Guarantor may have at any time against any of Borrowers, any Bank, the Agent, any other Guarantor or any other Person, whether in connection with this Guaranty, the Loan Documents, the transactions contemplated thereby or any other transactions;
(f) any action invalidity or inaction by the Lender under or in respect of unenforceability for any reason of the Loan Documents, any failure, lack of diligence, omission Agreement or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the other Loan Documents, or any other action provision of Law purporting to prohibit the payment or inaction on the part performance by any of Borrowers or any Guarantor of the Lender;Guaranteed Amount or Loan Documents, or of any other obligation to the Banks; or
(g) any voluntary other circumstances or involuntary bankruptcyhappening whatsoever, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities whether or not similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawforegoing.
Appears in 1 contract
Continuing Guaranty. The Each Guarantor agrees that performance this Guaranty is a present and continuing guaranty of payment and not of collection and that each Guarantor’s obligations under this Guaranty is unconditional, irrespective of (i) the Obligations waiver or consent by Guarantor shall be a primary obligation, shall not be subject Bank with respect to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense provision of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any amendment, modification or other change with respect to any of the Loan Documents, (ii) any merger or consolidation of Borrower, any Guarantor, or any other guarantor of all or part of the Guaranteed Obligations into or with any Person or any change in the ownership of the equity of Borrower, any Guarantor, or any other guarantor of all or part of the Guaranteed Obligations, (iii) any dissolution of Borrower, any Guarantor, or any other guarantor of all or part of the Guaranteed Obligations, or any insolvency, bankruptcy, liquidation, reorganization or similar Proceedings with respect to Borrower, any Guarantor, or any other guarantor of all or part of the Guaranteed Obligations, (iv) any action or inaction on the part of Bank, including the Lender;
(g) absence of any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for attempt to collect the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Guaranteed Obligations from Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of all or part of the Guaranteed Obligations or other action to enforce the same or the failure by Bank to take any steps to perfect and maintain its Lien on, or to preserve its rights to, any security or collateral for the Guaranteed Obligations, (v) the validity or enforceability of the Guaranteed Obligations or any termination part thereof or any of the other Loan Documents (vi) Bank’s election, in any such relationship;
Proceeding instituted under Chapter 11 of Title 11 of the United States Code (j11 U.S.C. §101 et seq.), as amended (the Bankruptcy Code) of the application of §1111(b)(2) of the Bankruptcy Code, (vii) any release borrowing or discharge grant of a Lien by operation of law of the Borrower, the Guarantor any Guarantor, or any other guarantor of the Obligations from any obligation all or agreement contained in any part of the Loan Documents; or
(k) any other occurrenceGuaranteed Obligations, circumstanceas debtor-in-possession, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge under §364 of the Bankruptcy Code, (viii) the disallowance, under §502 of the Bankruptcy Code, of all or any portion of Bank’s claims for repayment of the Guaranteed Obligations, (ix) Bank’s inability to enforce the Guaranteed Obligations of Borrower as a result of the automatic stay provisions of §362 of the Bankruptcy Code, or (x) the discharge or release by Bank of any Guarantor’s obligations and liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawunder this Guaranty.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
(a) The Company guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement and the other Loan Documents. The Company agrees that, to the maximum extent permitted by applicable law, the Guaranteed Obligations and Loan Documents to which the Subsidiary Borrower is a party may be extended or renewed, and indebtedness thereunder repaid and reborrowed in whole or in part, without notice to or assent by the Company, and that it will remain bound upon this Guaranty notwithstanding any lack of validity extension, renewal or enforceability other alteration of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Guaranteed Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any repayment and reborrowing of Loans. To the maximum extent permitted by applicable law, except as otherwise expressly provided in this Agreement or any other action Loan Document to which the Company is a party, the obligations of the Company under this Guaranty shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms hereof under any circumstances whatsoever, including:
(i) any modification, amendment, supplement, renewal, extension for any period, increase, decrease, alteration or inaction on the rearrangement of all or any part of the LenderGuaranteed Obligations, or of this Agreement or any other Loan Document executed in connection herewith, or any contract or understanding among the Company, the Subsidiary Borrower, the Administrative Agent and/or the Lenders, or any other Person, pertaining to the Guaranteed Obligations;
(gii) any voluntary adjustment, indulgence, forbearance or involuntary bankruptcy, compromise that might be granted or given by the Lenders to the Company or any other Person liable on the Guaranteed Obligations;
(iii) the insolvency, reorganizationbankruptcy, arrangement, readjustment, assignment for the benefit of creditorsadjustment, composition, receivership, liquidation, marshaling disability, dissolution or lack of assets and liabilities or similar events or proceedings with respect to power of the BorrowerCompany, the Guarantor Subsidiary Borrower or any other guarantor Person at any time liable for the payment of all or part of the Guaranteed Obligations, as applicable, ; or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation dissolution of the Company, the Subsidiary Borrower into or with any entity, or any sale, lease or transfer of any or all of the assets of the Company or the Subsidiary Borrower, the Guarantor or any other guarantor changes in the shareholders of the Obligations to Company, the Subsidiary Borrower, or any other person reorganization of the Company or entitythe Subsidiary Borrower;
(iiv) the invalidity, illegality or unenforceability of all or any change in the ownership part of the Borrower Guaranteed Obligations, or any change document or agreement executed in connection with the relationship between Guaranteed Obligations, for any reason whatsoever, including the fact that (A) the Guaranteed Obligations, or any part thereof, exceeds the amount permitted by law, (B) the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, (C) the officers or representatives executing the documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, (D) the Guaranteed Obligations or any part thereof violate applicable usury laws, (E) the Company or the Subsidiary Borrower has valid defenses, claims and offsets (whether at law or in equity, by agreement or by statute) which render the Guaranteed Obligations wholly or partially uncollectible from the Company or the Subsidiary Borrower, (F) the Guarantorcreation, performance or repayment of the Guaranteed Obligations (or execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations, or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or (G) this Agreement, any other Loan Document, or any other guarantor document or instrument pertaining to the Guaranteed Obligations has been forged or otherwise is irregular or not genuine or authentic;
(v) any full or partial release of the liability of the Company or the Subsidiary Borrower on the Guaranteed Obligations or any part thereof, or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof; it being recognized, acknowledged and agreed by the Company that the Company may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and the Company has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that any other Person will be liable to perform the Guaranteed Obligations, or that the Administrative Agent or any Lender will look to any other Person to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment of any collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) the failure of the Administrative Agent, the Lenders or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(ix) the fact that any collateral, security or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien; it being recognized and agreed by the Company that the Company is not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the collateral for the Guaranteed Obligations;
(x) any payment by the Subsidiary Borrower or the Company to the Administrative Agent or any Lender is held to constitute a preference under bankruptcy laws, or for any other reason any of the Administrative Agent or any Lender is required to refund such payment or pay such amount to the Subsidiary Borrower or any other Person; or
(xi) any other action taken or omitted to be taken with respect to this Agreement, any other Loan Document, the Guaranteed Obligations, or any termination of any security and collateral therefor, whether or not such relationship;
(j) any release action or discharge by operation of law omission prejudices the Company or increases the likelihood that the Company will be required to pay the Guaranteed Obligations pursuant to the terms hereof; it being the unambiguous and unequivocal intention of the BorrowerCompany that the Company shall be obligated to pay the Guaranteed Obligations when due, the Guarantor or notwithstanding any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, action, or omission whatsoever, whether similar contemplated or dissimilar to the foregoing uncontemplated, and whether foreseen or unforeseennot otherwise or particularly described herein, which otherwise might constitute a legal or equitable defense or discharge except for the full and final payment and satisfaction of the liabilities Guaranteed Obligations after the termination of a guarantor the Commitments of all Lenders and the expiration or surety or which otherwise might limit recourse against termination of the Subsidiary Borrower or the Guarantor Letter of Credit.
(b) The Company further agrees that, to the fullest extent permitted by law, as between the Company, on the one hand, and the Lenders and the Administrative Agent, on the other hand, (i) the maturity of the Guaranteed Obligations may be accelerated as provided in Article VII for the purposes of this Guaranty, notwithstanding any stay, injunction or other prohibition preventing such acceleration of the Guaranteed Obligations, and (ii) in the event of any acceleration of the Guaranteed Obligations as provided in Article VII, the Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Company for the purpose of this Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Kinder Morgan Energy Partners L P)
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by Guarantor This Guaranty shall be a primary obligationcontinuing guaranty, shall not be subject to any counterclaim (other than a mandatory counterclaim)binding upon the Guarantor, set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entityits successors and assigns, and shall remain in full force and effect without regard toeffect, and shall not be releaseddischarged, discharged impaired or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
by (a) any lack of validity the existence or enforceability continuance of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay obligation on the part of the BorrowerBorrower on or with respect to the Indebtedness Hereby Guaranteed, or any Obligation under the GuarantorLoan Documents; (b) the power or authority (or any lack thereof) of the Borrower to issue the Notes or to execute, acknowledge or deliver any other guarantor Loan Document; (c) the validity or invalidity of the Obligations Notes or any other Loan Document; (d) any defense whatsoever that the Lender Borrower may or might have to conform or comply with any term of any the payment of the Loan Documents Indebtedness Hereby Guaranteed or any failure of to the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or terms, provisions, covenants and agreements contained in the Notes or other Loan Documents; (e) any limitation or exculpation of liability on the part of the Loan Documents;
Borrower; (f) any action or inaction the dissolution of the Borrower; (g) the transfer by the Lender under Borrower of all or any part of the property referred to in respect the Loan Documents to any other corporation, person or entity; (h) any sale, pledge, surrender, indulgence, alteration, substitution, exchange, change in, additions to, renewals of, extension, modification or other disposition of any of the Loan DocumentsIndebtedness Hereby Guaranteed, or any of the Obligations, all of which the Lender is hereby expressly authorized to make from time to time without notice to the Guarantor, or to anyone; (i) the acceptance by the Lender of any security for, or other guarantors upon, all or any part of the Indebtedness Hereby Guaranteed or Obligations; (j) any failure, lack of diligence, neglect or omission or delay on the part of the Lender to perfectrealize or protect any of the Indebtedness Hereby Guaranteed or any collateral or security therefor, enforce, assert or to exercise any lienlien upon or right or appropriation of any moneys, security interest, credits or property of the Borrower toward the liquidation of the Indebtedness Hereby Guaranteed or any application of payments or credits thereon; (k) any right, power claim or remedy conferred on offset which Guarantor may have against the Borrower; or (l) any defense (other than the payment of the Indebtedness Hereby Guaranteed and performance of the Obligations, in accordance with its terms) that the Guarantor may or might have to its respective undertakings, liabilities and obligations hereunder, each and every such defense being hereby waived by the Guarantor; it in being understood and agreed that this Guaranty, and the undertakings, liabilities and obligations of the Guarantor hereunder shall not be affected, discharged, impaired or varied by any act, omission or circumstance whatsoever (whether or not specifically enumerated above) except the due and punctual payment of the Indebtedness Hereby Guaranteed and performance of the Obligations, and then only to the extent thereof; or (m) any understanding or agreement that any other person, firm or corporation was or is to execute this Guaranty or the Notes or any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Samples: Guaranty (Talx Corp)
Continuing Guaranty. The Guarantor agrees that the performance of the Obligations by the Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that the Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not the Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, Guarantor or any other guarantor of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan AgreementNotes);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender (other than any illegal action or omission) under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, Guarantor or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Samples: Limited Guaranty of Payment (Grubb & Ellis Healthcare REIT, Inc.)
Continuing Guaranty. The Guarantor agrees that performance This Guaranty is a continuing guaranty of the Guaranteed Obligations by Guarantor and all liabilities to which it applies or may apply under the terms hereof and shall be a primary obligation, shall not be subject conclusively presumed to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment have been created in reliance hereon. No failure or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations delay by Agent or any other person member of the Lender Group in the exercise of any right, power, privilege or entityremedy shall operate as a waiver thereof, and no single or partial exercise by Agent or any other member of the Lender Group of any right or remedy shall preclude other or further exercise thereof or the exercise of any other right or remedy and no course of dealing between any Guarantor, Agent or any other member of the Lender Group shall operate as a waiver thereof. The obligations of each Guarantor hereunder shall remain in full force and effect without regard to, and shall not be released, discharged affected or affected in any way byimpaired by the following, any circumstance of which may be taken without the consent of, or condition (whether notice to, such Guarantor, nor shall any of the following give such Guarantor any recourse or not Guarantor shall have right of action against Agent or any knowledge thereof):other member of the Lender Group:
(a) Any Insolvency Proceeding relating to such Guarantor or any lack Borrower, any Affiliate of validity any Borrower or enforceability any other Person, or any action taken with respect to this Guaranty by any trustee or receiver, or by any court, in any such proceeding, regardless of whether such Guarantor shall have had notice or knowledge of any of the Loan Documentsforegoing;
(b) any termination, amendment, modification Any release or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release discharge of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender to conform or comply with any term of Borrower from its liability under any of the Loan Documents or any failure of the Lender to give notice release or discharge of any Event endorser or guarantor or of Default (as such term is defined in any other Person at any time directly or contingently liable for the Loan Agreement)Guaranteed Obligations;
(ec) any waiverAny subordination, compromise, releaserelease (by operation of law or otherwise), settlement discharge, compound, collection or extension of time of payment or performance or observance liquidation of any or all of the obligations Collateral or agreements contained other property described in any of the Loan Documents;Documents or otherwise in any manner, or any substitution with respect thereto; and
(fd) any action or inaction by the Lender under or in respect Any acceptance of any partial performance of the Loan Documents, Guaranteed Obligations. No action by Agent or any failure, lack of diligence, omission or delay on the part other member of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it Group permitted hereunder shall in any way impair or affect this Guaranty. For the purpose of this Guaranty, the Guaranteed Obligations shall include, without limitation, all Obligations of the Loan Documents, or any Borrowers to Agent and the other action or inaction on the part members of the Lender;
(g) Lender Group and the Bank Product Providers, notwithstanding any voluntary right or involuntary bankruptcypower of any third party, insolvency, reorganization, arrangement, readjustment, assignment for individually or in the benefit name of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the BorrowerBorrowers, the Guarantor or any other guarantor of Lender Group and the Obligations, as applicableBank Product Providers, or any of their respective property them, to assert any claim or creditors, defense as to the invalidity or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination unenforceability of any such relationship;
(j) Obligation, and no such claim or defense shall impair or affect the obligations of any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawhereunder.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that performance hereby unconditionally guarantees and promises to pay on demand to Coast, at the address indicated above, or at such other address as Coast may direct, in lawful money of the Obligations United States, and to perform for the benefit of Coast, all Indebtedness of Borrower now or hereafter owing to or held by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the LenderCoast. As used herein, the Borrower, any other guarantor of the Obligations or any other person or entity, term "Indebtedness" is used in its most comprehensive sense and shall remain in full force mean and effect include without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
limitation: (a) any lack and all debts, duties, obligations, liabilities, representations, warranties and guaranties of validity Borrower or enforceability any one or more of them to Coast, heretofore, now, or hereafter made, incurred, or created, however arising, whether voluntary or involuntary, due or not due, absolute or contingent, liquidated or unliquidated, certain or uncertain, determined or undetermined, monetary or non-monetary, written or oral, and whether Borrower may be liable individually or jointly with others, and regardless of whether recovery thereon may be or hereafter become barred by any statute of the Loan Documents;
limitations, discharged or uncollectible in any bankruptcy, insolvency or other proceeding, or otherwise unenforceable; and (b) any terminationand all amendments, amendmentmodifications, modification renewals and extensions of any or other change in any all of the Loan Documentsforegoing, includingincluding without limitation amendments, without limitationmodifications, renewals and extensions which are evidenced by any modification of the interest rate(s) described therein;
new or additional instrument, document or agreement; and (c) any furnishingand all reasonable attorneys' fees, exchangecourt costs, substitution and collection charges incurred in endeavoring to collect or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender to conform or comply with any term of enforce any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the foregoing against Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor person liable thereon (whether or not suit be brought) and any other expenses of, for or incidental to collection thereof. As used herein, the term "Borrower" shall include any successor to the business and assets of Borrower, and shall also include Borrower in its capacity as a debtor or debtor in possession under the Obligationsfederal Bankruptcy Code, and any trustee, custodian or receiver for Borrower or any termination of its assets, should Borrower hereafter become the subject of any bankruptcy or insolvency proceeding, voluntary or involuntary; and all indebtedness, liabilities and obligations incurred by any such relationship;
(j) person shall be included in the Indebtedness guaranteed hereby. This Guaranty is given in consideration for credit and other financial accommodations which may, from time to time, be given by Coast to Borrower in Coast's sole discretion, but Guarantor acknowledges and agrees that acceptance by Coast of this Guaranty shall not constitute a commitment of any release kind by Coast to extend such credit or discharge by operation of law of other financial accommodation to Borrower or to permit Borrower to incur Indebtedness to Coast. All sums due under this Guaranty shall bear interest from the Borrower, date due until the Guarantor or any other guarantor of date paid at the Obligations from any obligation or agreement contained in highest rate charged with respect to any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawIndebtedness.
Appears in 1 contract
Samples: Continuing Guaranty (Symposium Corp)
Continuing Guaranty. The Guarantor agrees that performance of the Company’s Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the LenderHolder, the BorrowerCompany, any other guarantor of the Company’s Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
(a) ), including without limitation: any lack of validity or enforceability of any of the Loan Transaction Documents;
(b) ; any termination, amendment, modification or other change in any of the Loan Transaction Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) ; any furnishing, exchange, substitution or release of any collateral securing repayment of the LoanNotes, or any failure to perfect any lien in such collateral;
(d) ; any failure, omission or delay on the part of the BorrowerCompany, the Guarantor, any other guarantor of the Company’s Obligations or the Lender Holder to conform or comply with any term of any of the Loan Transaction Documents or any failure of the Lender Holder to give notice of any Event event of Default (as such term is defined in default under the Loan Agreement);
(e) Transaction Documents; any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Transaction Documents;
(f) ; any action or inaction by the Lender Holder under or in respect of any of the Loan Transaction Documents, any failure, lack of diligence, omission or delay on the part of the Lender Holder to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Transaction Documents, or any other action or inaction on the part of the Lender;
(g) Holder; any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the BorrowerCompany, the Guarantor or any other guarantor of the Company’s Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) ; any merger or consolidation of the Borrower Company into or with any entity, or any sale, lease or transfer of any of the assets of the BorrowerCompany, the Guarantor or any other guarantor of the Company’s Obligations to any other person or entity;
(i) ; any change in the ownership of the Borrower Company or any change in the relationship between the Borrower, the Company and Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) ; any release or discharge by operation of law of the BorrowerCompany, the Guarantor or any other guarantor of the Company’s Obligations from any obligation or agreement contained in any of the Loan Transaction Documents; or
(k) or any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower Company or the Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Samples: Loan Agreement (Eos Petro, Inc.)
Continuing Guaranty. The Guarantor agrees that performance of the Sellers’ Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the LenderBuyer, the BorrowerSellers, any other guarantor of the Sellers’ Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including without limitation:
(a) a. any lack of validity or enforceability of the Purchase Agreement or any of the Loan Documentsdocuments entered into in conjunction therewith;
(b) b. any termination, amendment, modification or other change in the Purchase Agreement or any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described thereindocuments executed in conjunction therewith;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) c. any failure, omission or delay on the part of the BorrowerSellers, the Guarantor, any other guarantor of the Sellers’ Obligations or the Lender Buyer to conform or comply with any term of the Purchase Agreement, any of the Loan Documents documents executed in conjunction therewith, or any failure of the Lender Buyer to give notice of any Event event of Default (as such term is defined in the Loan Agreement)default;
(e) d. any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in the Purchase Agreement or any of the Loan Documentsdocuments executed in conjunction therewith;
(f) e. any action or inaction by the Lender Buyer under or in respect of to the Purchase Agreement or any of the Loan Documentsdocuments executed in conjunction therewith, any failure, lack of diligence, omission or delay on the part of the Lender Buyer to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in the Purchase Agreement or any of the Loan Documentsdocuments executed in conjunction therewith, or any other action or inaction on the part of the LenderBuyer;
(g) f. any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the BorrowerSellers, the Guarantor or any other guarantor of the Sellers’ Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) g. any merger or consolidation of the Borrower any Seller into or with any entity, or any sale, lease or transfer of any of the assets of the BorrowerSellers, the Guarantor or any other guarantor of the Sellers’ Obligations to any other person or entity;
(i) h. any change in the ownership of the Borrower Sellers or any change in the relationship between the BorrowerSellers, the Guarantor, Guarantor or any other guarantor of the Sellers’ Obligations, or any termination of any such relationship;
(j) i. any release or discharge by operation of law of the BorrowerSellers, the Guarantor or any other guarantor of the Sellers’ Obligations from any obligation or agreement contained in the Purchase Agreement or any documents executed in conjunction therewith (other than as a result of the Loan Documentsfull performance hereunder or thereunder); or
(k) j. any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower Sellers or the Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Samples: Asset Purchase Agreement (Applied Industrial Technologies Inc)
Continuing Guaranty. The Guarantor agrees that performance the obligations of the Obligations by Guarantor hereunder ("Guarantor's Obligations") shall be a primary obligationobligations of Guarantor, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the LenderLessor, the Borrower, any other guarantor of the Obligations Lessee or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged discharged, limited or affected in any way by, by any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including, without limitation:
(a) any lack of validity or enforceability of any of the Loan Lease Documents;
(b) any termination, restatement, amendment, modification or other change in any of the Loan Lease Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the LoanEquipment, or any failure to perfect any lien in such collateralany of the Equipment;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations Lessee or the Lender Lessor to conform or comply with any term of any of the Loan Lease Documents or any failure of the Lender Lessor to give notice of any Event of Default (as such term is defined in the Loan Agreement)default thereunder;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Lease Documents;
(f) any action or inaction by the Lender Lessor under or in respect of any of the Loan Lease Documents, any failure, lack of diligence, omission or delay on the part of the Lessor or any Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it Lessor in any of the Loan Lease Documents, or any other action or inaction on the part of the LenderLessor;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the BorrowerGuarantor, the Guarantor Lessee or any other guarantor of the Obligations, as applicable, person or entity or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower Guarantor, Lessee or any other person or entity into or with any person or entity, or any sale, lease or transfer of any of the assets of the BorrowerGuarantor, the Guarantor Lessee or any other guarantor of the Obligations person to any other person or entity;
(i) any change in the ownership of any of the Borrower equity interests of Lessee or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the ObligationsGuarantor and Lessee, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations Lessee from any obligation or agreement contained in any of the Loan Lease Documents; or;
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower Guarantor or the Guarantor to the fullest extent permitted by lawLessee.
Appears in 1 contract
Samples: Guaranty (Paging Partners Corp)
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan AgreementNote);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, Guarantor or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Samples: Guaranty of Payment and Performance (Feldman Mall Properties, Inc.)
Continuing Guaranty. i. The obligations of the Guarantor agrees that performance to pay and perform the Obligations and/or any other obligations of the Guarantor hereunder (collectively, the “Guaranty Obligations”) are continuing, absolute, unconditional, and irrevocable irrespective of the validity, regularity, enforceability, or value of any of the Obligations by Guarantor shall be a primary obligationand notwithstanding any claim, shall not be subject to any counterclaim (other than a mandatory counterclaim)defense, or right of set-off, abatement, deferment or defense (other than off which the defense of payment) based upon any claim that Guarantor may have against the LenderSecured Party, including any such claim, defense, or right based on any present or future applicable law and irrespective of any other circumstances which might otherwise constitute a legal or equitable release, defense, or discharge of a surety or a guarantor. Without limiting the generality of the foregoing, the BorrowerGuaranty Obligations shall not be discharged or impaired or otherwise affected by:
a) any rescission, waiver, amendment, or modification of any other guarantor terms or provisions of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
(a) any lack of validity or enforceability of any of the Loan Documentsdocuments evidencing the same;
(b) any terminationfraudulent, amendmentillegal, modification or other change in any of improper act by the Loan DocumentsBorrower, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the LoanGuarantor, or any failure to perfect any lien in such collateral;
(d) other guarantor or any failure, omission omission, or delay on the part of the Borrower, the Guarantor, or any other guarantor of the Obligations or the Lender to conform or comply with any term of any the Obligations or of the Loan Documents or this Guaranty;
c) any failure of the Lender Secured Party to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement assert a claim or extension of time of payment demand or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert enforce or exercise any lien, security interest, right, power right or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between against the Borrower, the Guarantor, or any other guarantor of the Obligations, or for any termination of any such relationshipreason;
(jd) any release or discharge by operation of law or otherwise of the Borrower or any other guarantor from any Obligation or the documents evidencing the same;
e) any change in the existence, structure, or ownership of the Borrower or any guarantor, or the legal incapacity of the Borrower or any other guarantor;
f) the death or legal incapacity of the Guarantor;
g) any insolvency, bankruptcy, reorganization, arrangement, readjustment, composition, liquidation, or other similar proceeding affecting the Borrower, the Guarantor Guarantor, or any other guarantor guarantor, or their respective assets or any resulting disallowance, release, or discharge of all or any portion of the Obligations from any obligation or agreement contained in any of the Loan DocumentsObligations; or
(kh) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of the Borrower, a guarantor or surety surety, or which otherwise might limit recourse against the Borrower Guarantor.
ii. This Guaranty shall continue to be effective or be reinstated, as the Guarantor case may be, if at any time payment or performance of the Obligations, or any part thereof, to the fullest extent permitted Secured Party is rescinded or must otherwise be returned by lawthe Secured Party, whether in connection with the insolvency, bankruptcy, or reorganization of the Borrower, the Guarantor, or any other guarantor, or otherwise, all as though such payment to the Secured Party has not been made.
Appears in 1 contract
Samples: Forbearance Agreement (Cirtran Corp)
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
(a) The Company guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement and the other Loan Documents. The Company agrees that, to the maximum extent permitted by applicable law, the Guaranteed Obligations and Loan Documents to which the Subsidiary Borrower is a party may be extended or renewed, and indebtedness thereunder repaid and reborrowed in whole or in part, without notice to or assent by the Company, and that it will remain bound upon this Guaranty notwithstanding any lack of validity extension, renewal or enforceability other alteration of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Guaranteed Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any repayment and reborrowing of Loans. To the maximum extent permitted by applicable law, except as otherwise expressly provided in this Agreement or any other action Loan Document to which the Company is a party, the obligations of the Company under this Guaranty shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms hereof under any circumstances whatsoever, including:
(i) any modification, amendment, supplement, renewal, extension for any period, increase, decrease, alteration or inaction on the rearrangement of all or any part of the LenderGuaranteed Obligations, or of this Agreement or any other Loan Document executed in connection herewith, or any contract or understanding among the Company, the Subsidiary Borrower, the Administrative Agent and/or the Lenders, or any other Person, pertaining to the Guaranteed Obligations;
(gii) any voluntary adjustment, indulgence, forbearance or involuntary bankruptcy, compromise that might be granted or given by the Lenders to the Company or any other Person liable on the Guaranteed Obligations;
(iii) the insolvency, reorganizationbankruptcy, arrangement, readjustment, assignment for the benefit of creditorsadjustment, composition, receivership, liquidation, marshaling disability, dissolution or lack of assets and liabilities or similar events or proceedings with respect to power of the BorrowerCompany, the Guarantor Subsidiary Borrower or any other guarantor Person at any time liable for the payment of all or part of the Guaranteed Obligations, as applicable, ; or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation dissolution of the Company, the Subsidiary Borrower into or with any entity, or any sale, lease or transfer of any or all of the assets of the Company or the Subsidiary Borrower, the Guarantor or any other guarantor changes in the shareholders of the Obligations to Company, the Subsidiary Borrower, or any other person reorganization of the Company or entitythe Subsidiary Borrower;
(iiv) the invalidity, illegality or unenforceability of all or any change in the ownership part of the Borrower Guaranteed Obligations, or any change document or agreement executed in connection with the relationship between Guaranteed Obligations, for any reason whatsoever, including the fact that (A) the Guaranteed Obligations, or any part thereof, exceeds the amount permitted by law, (B) the act of creating the Guaranteed Obligations or any part thereof is ultra vires, (C) the officers or representatives executing the dxxxxxnts or otherwise creating the Guaranteed Obligations acted in excess of their authority, (D) the Guaranteed Obligations or any part thereof violate applicable usury laws, (E) the Company or the Subsidiary Borrower has valid defenses, claims and offsets (whether at law or in equity, by agreement or by statute) which render the Guaranteed Obligations wholly or partially uncollectible from the Company or the Subsidiary Borrower, (F) the Guarantorcreation, performance or repayment of the Guaranteed Obligations (or execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations, or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or (G) this Agreement, any other Loan Document, or any other guarantor document or instrument pertaining to the Guaranteed Obligations has been forged or otherwise is irregular or not genuine or authentic;
(v) any full or partial release of the liability of the Company or the Subsidiary Borrower on the Guaranteed Obligations or any part thereof, or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof; it being recognized, acknowledged and agreed by the Company that the Company may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and the Company has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that any other Person will be liable to perform the Guaranteed Obligations, or that the Administrative Agent or any Lender will look to any other Person to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment of any collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) the failure of the Administrative Agent, the Lenders or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(ix) the fact that any collateral, security or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien; it being recognized and agreed by the Company that the Company is not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the collateral for the Guaranteed Obligations;
(x) any payment by the Subsidiary Borrower or the Company to the Administrative Agent or any Lender is held to constitute a preference under bankruptcy laws, or for any other reason either the Administrative Agent or any Lender is required to refund such payment or pay such amount to the Subsidiary Borrower or any other Person; or
(xi) any other action taken or omitted to be taken with respect to this Agreement, any other Loan Document, the Guaranteed Obligations, or any termination of any security and collateral therefor, whether or not such relationship;
(j) any release action or discharge by operation of law omission prejudices the Company or increases the likelihood that the Company will be required to pay the Guaranteed Obligations pursuant to the terms hereof; it being the unambiguous and unequivocal intention of the BorrowerCompany that the Company shall be obligated to pay the Guaranteed Obligations when due, the Guarantor or notwithstanding any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, action, or omission whatsoever, whether similar contemplated or dissimilar to the foregoing uncontemplated, and whether foreseen or unforeseennot otherwise or particularly described herein, which otherwise might constitute a legal or equitable defense or discharge except for the full and final payment and satisfaction of the liabilities Guaranteed Obligations after the termination of a guarantor the Commitments of all Lenders and the expiration or surety or which otherwise might limit recourse against termination of the Subsidiary Borrower or the Guarantor Letter of Credit.
(b) The Company further agrees that, to the fullest extent permitted by law, as between the Company, on the one hand, and the Lenders and the Administrative Agent, on the other hand, (i) the maturity of the Guaranteed Obligations may be accelerated as provided in Article VII for the purposes of this Guaranty, notwithstanding any stay, injunction or other prohibition preventing such acceleration of the Guaranteed Obligations, and (ii) in the event of any acceleration of the Guaranteed Obligations as provided in Article VII, the Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Company for the purpose of this Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Kinder Morgan Energy Partners L P)
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by the Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that the Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect until the Indebtedness is repaid to Lender (except as expressly set forth herein) without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not the Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein, except to the extent that any such termination, amendment, modification or change to the Loan Documents changes the Guarantor’s obligations thereunder;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)Note) to Guarantor;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan DocumentsDocuments which does not expressly extend to Guarantor;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, Guarantor or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) except as expressly agreed to by the Lender, any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that the performance of the Obligations by the Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that the Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not the Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, Guarantor or any other guarantor of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan AgreementNote);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender (other than any illegal action or omission) under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, Guarantor or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Samples: Limited Guaranty of Payment (Grubb & Ellis Healthcare REIT, Inc.)
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
(a) Each Subsidiary Guarantor guarantees that the Borrower Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement and the other Loan Documents. Each Subsidiary Guarantor agrees that, to the maximum extent permitted by applicable law, the Borrower Guaranteed Obligations and the Loan Documents may be extended or renewed, and Loans repaid and reborrowed in whole or in part, without notice to or assent by such Subsidiary Guarantor, and that it will remain bound upon this Subsidiary Guarantors Guaranty notwithstanding any lack of validity extension, renewal or enforceability other alteration of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Borrower Guaranteed Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any repayment and reborrowing of Loans. To the maximum extent permitted by applicable law, except as otherwise expressly provided in this Agreement or any other action Loan Document to which such Subsidiary Guarantor is a party, the obligations of each Subsidiary Guarantor under this Subsidiary Guarantors Guaranty shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms hereof under any circumstances whatsoever, including:
(i) any modification, amendment, supplement, renewal, extension for any period, increase, decrease, alteration or inaction on the rearrangement of all or any part of the LenderBorrower Guaranteed Obligations or this Agreement or any other Loan Document executed in connection herewith, or any contract or understanding among either Borrower, any Subsidiary Guarantor, the Administrative Agent and/or the Lenders, or any other Person, pertaining to the Borrower Guaranteed Obligations;
(gii) any voluntary adjustment, indulgence, forbearance or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for compromise that might be granted or given by the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities Lenders to either Borrower or similar events or proceedings with respect to the Borrower, the any Subsidiary Guarantor or any other guarantor of Person liable on the Borrower Guaranteed Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(hiii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of either Borrower, any merger Subsidiary Guarantor or consolidation any other Person at any time liable for the payment of all or part of the Borrower into Guaranteed Obligations; or with any entitydissolution of either Borrower or any Subsidiary Guarantor, or any sale, lease or transfer of any or all of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the either Borrower or any change in the relationship between the Borrower, the Subsidiary Guarantor, or any other guarantor changes in the holders of the equity in either Borrower or any Subsidiary Guarantor; or any reorganization of either Borrower or any Subsidiary Guarantor;
(iv) the invalidity, illegality or unenforceability of all or any part of the Borrower Guaranteed Obligations, or any termination document or agreement executed in connection with the Borrower Guaranteed Obligations, for any reason whatsoever, including the fact that (A) the Borrower Guaranteed Obligations, or any part thereof, exceeds the amount permitted by law, (B) the act of creating the Borrower Guaranteed Obligations or any part thereof is ultra xxxxx, (C) the officers or representatives executing the documents or otherwise creating the Borrower Guaranteed Obligations acted in excess of their authority, (D) the Borrower Guaranteed Obligations or any part thereof violate applicable usury laws, (E) either Borrower or any Subsidiary Guarantor has valid defenses, claims and offsets (whether at law or in equity, by agreement or by statute) which render the Borrower Guaranteed Obligations wholly or partially uncollectible from either Borrower or such Subsidiary Guarantor, (F) the creation, performance or repayment of the Borrower Guaranteed Obligations (or execution, delivery and performance of any such relationshipdocument or instrument representing part of the Borrower Guaranteed Obligations or executed in connection with the Borrower Guaranteed Obligations, or given to secure the repayment of the Borrower Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or (G) this Agreement, any other Loan Document, or any other document or instrument pertaining to the Borrower Guaranteed Obligations has been forged or otherwise is irregular or not genuine or authentic;
(jv) any full or partial release or discharge by operation of law of the Borrowerliability of either Borrower or any Subsidiary Guarantor on the Borrower Guaranteed Obligations or any part thereof, the Guarantor or any other guarantor Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Borrower Guaranteed Obligations from or any obligation part thereof; it being recognized, acknowledged and agreed by each Subsidiary Guarantor that such Subsidiary Guarantor may be required to pay the Borrower Guaranteed Obligations in full without assistance or support of any other Person, and such Subsidiary Guarantor has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement contained that any other Person will be liable to perform the Borrower Guaranteed Obligations, or that the Administrative Agent or any Lender will look to any other Person to perform the Borrower Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Borrower Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment of any collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Borrower Guaranteed Obligations;
(viii) the failure of the Administrative Agent, the Lenders or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(ix) the fact that any collateral, security or Lien contemplated or intended to be given, created or granted as security for the repayment of the Borrower Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien; it being recognized and agreed by each Subsidiary Guarantor that such Subsidiary Guarantor is not entering into this Subsidiary Guarantors Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the Loan Documentscollateral for the Borrower Guaranteed Obligations;
(x) any payment by the Company or any Subsidiary Guarantor to the Administrative Agent or any Lender is held to constitute a preference under bankruptcy laws, or for any reason either the Administrative Agent or any Lender is required to refund such payment or pay such amount to the Company or any other Person; or
(kxi) any other action taken or omitted to be taken with respect to this Agreement, any other Loan Document, the Borrower Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices any Subsidiary Guarantor or increases the likelihood that any Subsidiary Guarantor will be required to pay the Borrower Guaranteed Obligations pursuant to the terms hereof; it being the unambiguous and unequivocal intention of each Subsidiary Guarantor that such Subsidiary Guarantor shall be obligated to pay the Borrower Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, happening or event, action, or omission whatsoever, whether similar contemplated or dissimilar to the foregoing uncontemplated, and whether foreseen or unforeseennot otherwise or particularly described herein, which otherwise might constitute a legal or equitable defense or discharge except for the full and final payment and satisfaction of the liabilities Borrower Guaranteed Obligations after the termination of a guarantor the Commitments of all Lenders and the expiration or surety or which otherwise might limit recourse against termination of all Letters of Credit.
(b) Each Subsidiary Guarantor further agrees that, as between such Subsidiary Guarantor, on the one hand, and the Lenders and the Administrative Agent, on the other hand, (i) the maturity of the Borrower Guaranteed Obligations may be accelerated as provided in Article VII for the purposes of this Subsidiary Guarantors Guaranty, notwithstanding any stay, injunction or other prohibition preventing such acceleration of the Borrower Guaranteed Obligations, and (ii) in the event of any acceleration of the Obligations as provided in Article VII, the Borrower Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by each Subsidiary Guarantor to for the fullest extent permitted by lawpurpose of this Subsidiary Guarantors Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Kinder Morgan Energy Partners L P)
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
(a) The Company guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement and the other Loan Documents. The Company agrees that, to the maximum extent permitted by applicable law, the Guaranteed Obligations and Loan Documents to which the Subsidiary Borrower is a party may be extended or renewed, and indebtedness thereunder repaid and reborrowed in whole or in part, without notice to or assent by the Company, and that it will remain bound upon this Guaranty notwithstanding any lack of validity extension, renewal or enforceability other alteration of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Guaranteed Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any repayment and reborrowing of Loans. To the maximum extent permitted by applicable law, except as otherwise expressly provided in this Agreement or any other action Loan Document to which the Company is a party, the obligations of the Company under this Guaranty shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms hereof under any circumstances whatsoever, including:
(i) any modification, amendment, supplement, renewal, extension for any period, increase, decrease, alteration or inaction on the rearrangement of all or any part of the LenderGuaranteed Obligations, or of this Agreement or any other Loan Document executed in connection herewith, or any contract or understanding among the Company, the Subsidiary Borrower, the Administrative Agent and/or the Lenders, or any other Person, pertaining to the Guaranteed Obligations;
(gii) any voluntary adjustment, indulgence, forbearance or involuntary bankruptcy, compromise that might be granted or given by the Lenders to the Company or any other Person liable on the Guaranteed Obligations;
(iii) the insolvency, reorganizationbankruptcy, arrangement, readjustment, assignment for the benefit of creditorsadjustment, composition, receivership, liquidation, marshaling disability, dissolution or lack of assets and liabilities or similar events or proceedings with respect to power of the BorrowerCompany, the Guarantor Subsidiary Borrower or any other guarantor Person at any time liable for the payment of all or part of the Guaranteed Obligations, as applicable, ; or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation dissolution of the Company, the Subsidiary Borrower into or with any entity, or any sale, lease or transfer of any or all of the assets of the Company or the Subsidiary Borrower, the Guarantor or any other guarantor changes in the shareholders of the Obligations to Company, the Subsidiary Borrower, or any other person reorganization of the Company or entitythe Subsidiary Borrower;
(iiv) the invalidity, illegality or unenforceability of all or any change in the ownership part of the Borrower Guaranteed Obligations, or any change document or agreement executed in connection with the relationship between Guaranteed Obligations, for any reason whatsoever, including the fact that (A) the Guaranteed Obligations, or any part thereof, exceeds the amount permitted by law, (B) the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, (C) the officers or representatives executing the documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, (D) the Guaranteed Obligations or any part thereof violate applicable usury laws, (E) the Company or the Subsidiary Borrower has Five-Year Facility 72 valid defenses, claims and offsets (whether at law or in equity, by agreement or by statute) which render the Guaranteed Obligations wholly or partially uncollectible from the Company or the Subsidiary Borrower, (F) the Guarantorcreation, performance or repayment of the Guaranteed Obligations (or execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations, or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or (G) this Agreement, any other Loan Document, or any other guarantor document or instrument pertaining to the Guaranteed Obligations has been forged or otherwise is irregular or not genuine or authentic;
(v) any full or partial release of the liability of the Company or the Subsidiary Borrower on the Guaranteed Obligations or any part thereof, or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof; it being recognized, acknowledged and agreed by the Company that the Company may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and the Company has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that any other Person will be liable to perform the Guaranteed Obligations, or that the Administrative Agent or any Lender will look to any other Person to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment of any collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) the failure of the Administrative Agent, the Lenders or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(ix) the fact that any collateral, security or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien; it being recognized and agreed by the Company that the Company is not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the collateral for the Guaranteed Obligations;
(x) any payment by the Subsidiary Borrower or the Company to the Administrative Agent or any Lender is held to constitute a preference under bankruptcy laws, or for any other reason either the Administrative Agent or any Lender is required to Five-Year Facility 73 refund such payment or pay such amount to the Subsidiary Borrower or any other Person; or
(xi) any other action taken or omitted to be taken with respect to this Agreement, any other Loan Document, the Guaranteed Obligations, or any termination of any security and collateral therefor, whether or not such relationship;
(j) any release action or discharge by operation of law omission prejudices the Company or increases the likelihood that the Company will be required to pay the Guaranteed Obligations pursuant to the terms hereof; it being the unambiguous and unequivocal intention of the BorrowerCompany that the Company shall be obligated to pay the Guaranteed Obligations when due, the Guarantor or notwithstanding any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, action, or omission whatsoever, whether similar contemplated or dissimilar to the foregoing uncontemplated, and whether foreseen or unforeseennot otherwise or particularly described herein, which otherwise might constitute a legal or equitable defense or discharge except for the full and final payment and satisfaction of the liabilities Guaranteed Obligations after the termination of a guarantor the Commitments of all Lenders and the expiration or surety or which otherwise might limit recourse against termination of the Subsidiary Borrower or the Guarantor Letter of Credit.
(b) The Company further agrees that, to the fullest extent permitted by law, as between the Company, on the one hand, and the Lenders and the Administrative Agent, on the other hand, (i) the maturity of the Guaranteed Obligations may be accelerated as provided in Article VII for the purposes of this Guaranty, notwithstanding any stay, injunction or other prohibition preventing such acceleration of the Guaranteed Obligations, and (ii) in the event of any acceleration of the Guaranteed Obligations as provided in Article VII, the Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Company for the purpose of this Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Kinder Morgan Energy Partners L P)
Continuing Guaranty. The Guarantor agrees that performance of the Borrower’s Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-offset‑off, abatement, deferment or defense (other than the defense of payment) based upon any claim that any Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations Borrower’s Obligations, or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor Guarantors shall have any knowledge thereof):), including without limitation:
(a) a. any lack of validity or enforceability of any of the Loan Documents;
(b) b. any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) c. any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) d. any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations Borrower’s Obligations, or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) e. any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) f. any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) g. any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any Guarantor, any other guarantor of the Borrower’s Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) h. any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the any Guarantor or any other guarantor of the Borrower’s Obligations to any other person or entity;
(i) i. any change in the ownership of the Borrower or any change in the relationship between the Borrower, the any Guarantor, or any other guarantor of the Borrower’s Obligations, or any termination of any such relationship;
(j) j. any release or discharge by operation of law of the Borrower, the Guarantor any Guarantor, or any other guarantor of the Obligations Borrower’s Obligations, from any obligation or agreement contained in any of the Loan Documents; or
(k) k. any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the any Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that performance of the Guarantor's Obligations by Guarantor shall be a primary obligationobligations of Guarantor, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Agent, any Lender, the Borrower, any other guarantor of the Obligations Borrower or any other person or entityPerson, and shall remain in full force and effect without regard to, and shall not be released, discharged discharged, limited or affected in any way by, by any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including, without limitation:
(a) any lack of validity or enforceability of any of the Loan DocumentsInstruments;
(b) any termination, restatement, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described thereinInstruments;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the LoanCollateral, or any failure to perfect any lien Lien in such collateralany of the Collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, Agent or any other guarantor of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents Instruments or any failure of the Agent or any Lender to give notice of any Incipient Default or any Event of Default (as such term is defined in the Loan Agreement)Default;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan DocumentsInstruments;
(f) any action or inaction by the Agent or any Lender under or in respect of any of the Loan DocumentsInstruments, any failure, lack of diligence, omission or delay on the part of the Agent or any Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it Agent or any Lender in any of the Loan DocumentsInstruments, or any other action or inaction on the part of the Agent or any Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the BorrowerGuarantor, the Guarantor Borrower or any other guarantor of the Obligations, as applicable, Person or any of their respective property Property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Guarantor, Borrower or any other Person into or with any entityPerson, or any sale, lease or transfer of any of the assets of the BorrowerGuarantor, the Guarantor Borrower or any other guarantor of the Obligations person to any other person or entityPerson;
(i) any change in the ownership of any of the equity interests of Borrower or any change in the relationship between the Guarantor and Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations Borrower from any obligation or agreement contained in any of the Loan Documents; orInstruments;
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower Guarantor or the Guarantor to the fullest extent permitted by lawBorrower.
Appears in 1 contract
Samples: Guaranty (Paging Partners Corp)
Continuing Guaranty. The Each Guarantor agrees that performance by such Guarantor of the Obligations by Guarantor obligations under this Guaranty shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that such Guarantor may have against the Lender, the any Borrower, any other guarantor of the Guaranteed Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not such Guarantor shall have any knowledge thereof):), including without limitation —
(a) any Any lack of validity or enforceability of any of the Loan Documents;
(b) any Any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) rate or rates described therein;
(c) any Any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any Any failure, omission or delay on the part of the any Borrower, the any Guarantor, any other guarantor of the Guaranteed Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)Default;
(e) any Any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any Any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any Any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the any Borrower, the any Guarantor or any other guarantor of the Guaranteed Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any Any merger or consolidation of the any Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the any Borrower, the any Guarantor or any other guarantor of the Guaranteed Obligations to any other person or entity;
(i) any Any change in the ownership of the Borrower any Borrower, or any change in the relationship between the Borrower, the Guarantor, any Borrower and any Guarantor or any other guarantor of the Guaranteed Obligations, or any termination of any such relationship;
(j) any Any release or discharge by operation of law of the any Borrower, the any Guarantor or any other guarantor of the Guaranteed Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any Any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the any Borrower or the any Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Samples: Guaranty of Payment and Performance (Adcare Health Systems Inc)
Continuing Guaranty. The Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement, the Notes and the other Loan Documents. Each Guarantor agrees that performance the Guaranteed Obligations and Loan Documents may be extended or renewed, and Loans repaid and reborrowed in whole or in part, without notice to or assent by such Guarantor, and that it will remain bound upon this Guaranty notwithstanding any extension, renewal or other alteration of any Guaranteed Obligations or Loan Documents, or any repayment and reborrowing of Loans. To the Obligations maximum extent permitted by applicable law, the obligations of each Guarantor under this Guaranty shall be a primary obligationabsolute, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entityunconditional and irrevocable, and shall remain be performed strictly in full force and effect without regard toaccordance with the terms hereof under any circumstances whatsoever, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):including:
(a) any lack of validity extension, renewal, modification, settlement, compromise, waiver or enforceability release in respect of any of the Loan DocumentsGuaranteed Obligations;
(b) any terminationextension, renewal, amendment, modification modification, rescission, waiver or other change release in respect of any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishingrelease, exchange, substitution substitution, non-perfection or invalidity of, or failure to exercise rights or remedies with respect to, any direct or indirect security for any Guaranteed Obligations, including the release of any collateral securing repayment of the Loan, Guarantor or other Person liable on any failure to perfect any lien in such collateralGuaranteed Obligations;
(d) any failurechange in the corporate existence, omission structure or delay on the part ownership of the BorrowerCompany, any Guarantor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Company, such Guarantor, any other guarantor of the Obligations Guarantor or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)their respective assets;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance the existence of any of claim, defense, set-off or other rights or remedies which such Guarantor at any time may have against the obligations Company, or agreements contained the Company or such Guarantor may have at any time against the Agent, any Bank, any other Guarantor or any other Person, whether in any of connection with this Guaranty, the Loan Documents, the transactions contemplated thereby or any other transaction other than by the payment in full by the Company of the Guaranteed Obligations after the termination of the Commitments of the Banks and the expiration or termination of all Letters of Credit;
(f) any action invalidity or inaction by the Lender under unenforceability for any reason of this Agreement or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the other Loan Documents, or any other action provision of law purporting to prohibit the payment or inaction on the part of the Lender;performance by the
(g) any voluntary other circumstances or involuntary bankruptcyhappening whatsoever, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities whether or not similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawforegoing.
Appears in 1 contract
Continuing Guaranty. (a) The Guarantor U.S. Borrower guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement and the other Loan Documents. The U.S. Borrower agrees that, to the maximum extent permitted by applicable law, the Guaranteed Obligations and Loan Documents to which any Subsidiary Borrower is a party may be extended or renewed, and indebtedness thereunder repaid and reborrowed in whole or in part, without notice to or assent by the U.S. Borrower, and that performance it will remain bound upon this U.S. Borrower Guaranty notwithstanding any extension, renewal or other alteration of any of the Guaranteed Obligations or such Loan Documents or any repayment and reborrowing of Loans to any Subsidiary Borrower. To the maximum extent permitted by Guarantor applicable law, except as otherwise expressly provided in this Agreement or any other Loan Document to which the U.S. Borrower is a party, the obligations of the U.S. Borrower under this U.S. Borrower Guaranty shall be a primary obligationabsolute, unconditional and irrevocable, and shall not be subject to performed strictly in accordance with the terms hereof under any counterclaim circumstances whatsoever, including:
(i) any modification, amendment, supplement, renewal, extension for any period, increase, decrease, alteration or rearrangement of all or any part of the Guaranteed Obligations, or of this Agreement or any other than a mandatory counterclaim)Loan Document executed in connection herewith, set-off, abatement, deferment or defense (other than any contract or understanding among the defense of payment) based upon any claim that Guarantor may have against the LenderU.S. Borrower, the U.K. Borrower, the Dutch Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way bySubsidiary Borrower, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the BorrowerObligor, the Guarantor, any other guarantor of Administrative Agent and/or the Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan DocumentsLenders, or any other action Person, pertaining to the Guaranteed Obligations;
(ii) any adjustment, indulgence, forbearance or inaction compromise that might be granted or given by the Lenders to the U.S. Borrower or any other Person liable on the Guaranteed Obligations;
(iii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of the U.S. Borrower, the U.K. Borrower, the Dutch Borrower, any other Subsidiary Borrower, or any other Person at any time liable for the payment of all or part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor Guaranteed Obligations; or any other guarantor dissolution of the Obligations, as applicable, U.S. Borrower or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entitySubsidiary Borrower, or any sale, lease or transfer of any or all of the assets of the U.S. Borrower or any Subsidiary Borrower, the Guarantor or any other guarantor changes in the shareholders of the Obligations to U.S. Borrower or any other person Subsidiary Borrower, or entityany reorganization of the U.S. Borrower or any Subsidiary Borrower;
(iiv) the invalidity, illegality or unenforceability of all or any change in the ownership part of the Guaranteed Obligations, or any document or agreement executed in connection with the Guaranteed Obligations, for any reason whatsoever, including the fact that (A) the Guaranteed Obligations, or any part thereof, exceed the amount permitted by law, (B) the act of creating the Guaranteed Obligations, or any part thereof is ultra virex, (X) the officers or representatives executing the documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, (D) the Guaranteed Obligations or any part thereof violate applicable usury laws, (E) the U.S. Borrower or any change Subsidiary Borrower has valid defenses, claims, and offsets (whether at law or in equity, by agreement or by statute) which render the relationship between Guaranteed Obligations wholly or partially uncollectible from the U.S. Borrower or any Subsidiary Borrower, (F) the Guarantorcreation, performance, or repayment of the Guaranteed Obligations (or execution, delivery and performance of any document or instrument representing any part of the Guaranteed Obligations or executed in connection with any of the Guaranteed Obligations , or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or (G) this Agreement, any other Loan Document, or any other guarantor document or instrument pertaining to any of the ObligationsGuaranteed Obligations has been forged or otherwise is irregular or not genuine or authentic;
(v) any full or partial release of the liability of the U.S. Borrower or any Subsidiary Borrower on the Guaranteed Obligations or any part thereof, or any termination other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee, or assure the payment of the Guaranteed Obligations or any part thereof; it being recognized, acknowledged, and agreed by the U.S. Borrower that the U.S. Borrower may be required to pay the Guaranteed Obligations in full without assistance or support of any such relationshipother Person, and the U.S. Borrower has not been induced to enter into this U.S. Borrower Guaranty on the basis of a contemplation, belief, understanding or agreement that any other Person will be liable to perform the Guaranteed Obligations or that the Administrative Agent or any Lender will look to any other Person to perform the Guaranteed Obligations;
(jvi) the taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release release, surrender, exchange, subordination, deterioration, waste, loss or discharge by operation impairment of law any collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) the failure of the Administrative Agent, the Lenders or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(ix) the fact that any collateral, security or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien; it being recognized and agreed by the U.S. Borrower that the U.S. Borrower is not entering into this U.S. Borrower Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the collateral for the Guaranteed Obligations;
(x) any payment by any Subsidiary Borrower or the U.S. Borrower to the Administrative Agent or any Lender is held to constitute a preference under bankruptcy laws, or for any other reason either the Administrative Agent or any Lender is required to refund such payment or pay such amount to such Subsidiary Borrower, the Guarantor U.S. Borrower, or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan DocumentsPerson; or
(kxi) any other action taken or omitted to be taken with respect to this Agreement, any other Loan Document, the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices the U.S. Borrower or increases the likelihood that the U.S. Borrower will be required to pay the Guaranteed Obligations pursuant to the terms hereof; it being the unambiguous and unequivocal intention of the U.S. Borrower that the U.S. Borrower shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, happening or event, action, or omission whatsoever, whether similar contemplated or dissimilar to the foregoing uncontemplated, and whether foreseen or unforeseennot otherwise or particularly described herein, which otherwise might constitute a legal or equitable defense or discharge except for the full and final payment and satisfaction of the liabilities Guaranteed Obligations after the termination of a guarantor or surety or which otherwise might limit recourse against all of the Borrower or the Guarantor to the fullest extent permitted by lawCommitments.
Appears in 1 contract
Samples: Credit Agreement (Weatherford International Inc /New/)
Continuing Guaranty. The Each Guarantor agrees that performance of the such Guarantor’s Obligations by Guarantor shall be a primary obligationobligations of such Guarantor, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that such Guarantor may have against the LenderAdministrative Agent, any Bank, the BorrowerCompany, any other guarantor of the Obligations Guarantor or any other person or entityPerson, and shall remain in full force and effect without regard to, and shall not be released, discharged discharged, limited or affected in any way by, by any circumstance or condition (whether or not such Guarantor shall have any knowledge thereof):), including, without limitation:
(a) any lack of validity or enforceability of the Credit Agreement or any of the other Loan Documents;
(b) any termination, restatement, amendment, modification or other change in the Credit Agreement or any of the other Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loancollateral, if any, or any failure to perfect any lien in such any collateral, if any, given to secure the Debt of the Company arising under the Credit Agreement and the other Loan Documents;
(d) any failure, omission or delay on the part of the BorrowerCompany, the GuarantorAdministrative Agent, any Bank or any other guarantor of the Obligations or the Lender Guarantor to conform or comply with any term of the Credit Agreement or any of the other Loan Documents or any failure of the Lender Administrative Agent or any Bank to give notice of any Event of Default (as such term is defined in the Loan Agreement)or any Unmatured Event of Default;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in the Credit Agreement or any of the other Loan Documents;
(f) any action or inaction by the Lender Administrative Agent or any Bank under or in respect of the Credit Agreement or any of the other Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender Administrative Agent or any Bank to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it the Administrative Agent or any Bank in the Credit Agreement or any of the other Loan Documents, or any other action or inaction on the part of the LenderAdministrative Agent or any Bank;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrowerany Guarantor, the Guarantor Company or any other guarantor of the Obligations, as applicable, Person or any of their respective property properties or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower Company, any Guarantor or any other Person into or with any entityPerson, or any sale, lease or transfer of any of the assets of the BorrowerCompany, the any Guarantor or any other guarantor of the Obligations person to any other person or entityPerson;
(i) any change in the ownership of any of the Borrower capital stock of or other equity interests in the Company or any Guarantor or any change in the relationship between any Guarantor and the Borrower, the Guarantor, Company or any other guarantor of the ObligationsGuarantor, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the any Guarantor or any other guarantor of the Obligations Company from any obligation or agreement contained in the Credit Agreement or any of the other Loan Documents; or;
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower any Guarantor or the Company;
(l) any election by the Administrative Agent or any Bank in any proceeding instituted under Chapter 11 of the Bankruptcy Code;
(m) any borrowing or grant of a security interest by the Company, any Guarantor or any other Person, as debtor-in-possession, or extension of credit, under the Bankruptcy Code;
(n) the disallowance, under the Bankruptcy Code, of all or any portion of Banks’ claim(s) for repayment of the Debt of the Company arising under the Credit Agreement and the other Loan Documents or of such Guarantor’s Obligations;
(o) any use of cash collateral under the Bankruptcy Code, and
(p) any agreement or stipulation as to the fullest extent permitted by lawprovision of adequate protection in any bankruptcy proceeding.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that performance the obligations of the Obligations by Guarantor pursuant to Section 2 above shall be a primary obligationobligations, shall such not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the LenderLenders, the Borrower, any other guarantor of the Obligations or any other person or entityPerson, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, by any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including without limitation;
(a) any lack of validity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations Guarantor or the Lender Lenders to conform or comply with any term of any of the Loan Documents or any failure of the Lender Lenders to give notice of any Default or Event of Default (as such term is defined in the Loan Agreement)Default;
(ed) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(fe) any action or inaction by the Lender Lenders under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender Lenders to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it them in any of the Loan Documents, or any other action or inaction on the part of the LenderLenders;
(gf) any dissolution of Guarantor or any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceedingproceeding including, without limitation, any proceeding under Title 11 of the United States Code (11 U.S.C. Section 101 et seq.), as amended (the "Bankruptcy Code");
(hg) any merger or consolidation of Borrower, Guarantor or any other guarantor of the Borrower Obligations into or with any entityPerson, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entityPerson;
(ih) any change in the ownership of the capital stock of Borrower or any change in the relationship between the Borrower, the Borrower and Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(ji) any release or discharge by operation of law of the Borrower, the Borrower or Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; ;
(j) any Lender's election in any proceeding instituted under the Bankruptcy Code, of the application of Section 1111(b)(2) of the Bankruptcy Code;
(k) any borrowing or grant of a security interest by Borrower as debtor-in-possession under Section 364 of the Bankruptcy Code;
(l) the inability of any Lender to enforce the Obligations of Borrower as a result of the automatic stay provisions of Section 362 of the Bankruptcy Code;
(m) the disallowance, under Section 502 of the Bankruptcy Code, of all or any portion of Agent's or any Lender's claim or claims for repayment of the Obligations, or
(kn) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of or a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawGuarantor.
Appears in 1 contract
Samples: Guaranty (Telecom Wireless Corp/Co)
Continuing Guaranty. The Guarantor agrees that performance hereby unconditionally guarantees and promises to pay on demand to PFG, in lawful money of the Obligations by Guarantor shall be a primary obligationUnited States, shall not be subject all Indebtedness of Borrower now or hereafter owing to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the LenderPFG. As used herein, the Borrower, any other guarantor of the Obligations or any other person or entity, term “Indebtedness” is used in its most comprehensive sense and shall remain in full force mean and effect include without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
limitation: (a) any lack and all debts, duties, obligations, liabilities, representations, warranties and guaranties of validity Borrower or enforceability any one or more of any of the Loan Documents;
them, heretofore, now, or hereafter made, incurred, or created (b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification interest, charges, and other sums accruing after the filing of a petition by or against Borrower under the Bankruptcy Code), whether voluntary or involuntary, due or not due, absolute or contingent, liquidated or unliquidated, certain or uncertain, determined or undetermined, monetary or nonmonetary, written or oral, and whether Borrower may be liable individually or jointly with others, and regardless of whether recovery thereon may be or hereafter become barred by any statute of limitations, discharged or uncollectible in any bankruptcy, insolvency or other proceeding, or otherwise unenforceable; and (b) any and all amendments, modifications, renewals and extensions of any or all of the interest rate(s) described therein;
foregoing, including without limitation amendments, modifications, renewals and extensions which are evidenced by any new or additional instrument, document or agreement; and (c) any furnishingand all reasonable attorneys’ fees, exchangecourt costs, substitution and collection charges incurred in endeavoring to collect or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender to conform or comply with any term of enforce any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the foregoing against Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor person liable thereon (whether or not suit be brought) and any other reasonable expenses of, for or incidental to collection thereof. This Guaranty is given in consideration for credit and other financial accommodations which may, from time to time, be given by PFG to Borrower in PFG’s sole discretion, but Guarantor acknowledges and agrees that acceptance by PFG of the Obligations, or any termination this Guaranty shall not constitute a commitment of any kind by PFG to extend such relationship;
(j) any release credit or discharge by operation of law of other financial accommodation to Borrower or to permit Borrower to incur Indebtedness to PFG. All sums due under this Guaranty shall bear interest from the Borrower, date due until the Guarantor or any other guarantor of date paid at the Obligations from any obligation or agreement contained in highest rate charged with respect to any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawIndebtedness.
Appears in 1 contract
Samples: Loan and Security Agreement (Interwave Communications International LTD)
Continuing Guaranty. The Each Guarantor agrees that performance the Guaranteed Amount and Loan Documents may be extended or renewed, and the Revolving Credit Loan repaid and reborrowed in whole or in part, without notice to or assent by such Guarantor, and that it will remain bound upon this Guaranty notwithstanding any extension, renewal or other alteration of any Guaranteed Amount or Loan Documents, or any repayment and reborrowing of the Obligations by Revolving Credit Loan. Each Guarantor waives notice of acceptance of this Guaranty, presentation, demand, protest, notice of protest for nonpayment, diligence in bringing suits against any Person liable on any Guaranteed Amount, and any other notices or defenses of any kind. The obligations of each Guarantor under this Guaranty shall be a primary obligationabsolute, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entityunconditional and irrevocable, and shall remain be performed strictly in full force and effect accordance with the terms hereof under any circumstances whatsoever, including without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):limitation:
(a) any lack of validity extension, renewal, modification, settlement, compromise, waiver or enforceability release in respect of any Guaranteed Amount, including any reduction or termination of the Loan DocumentsCommitment;
(b) any terminationextension, renewal, amendment, modification modification, rescission, waiver or other change release in respect of any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishingrelease, exchange, substitution substitution, non-perfection or invalidity of, or failure to exercise rights with respect to, any direct or indirect security for any Guaranteed Amount, including the release of any collateral securing repayment of the Loan, Guarantor or other Person liable on any failure to perfect any lien in such collateralGuaranteed Amount;
(d) any failurechange in the corporate existence, omission structure or delay on the part ownership of the Borrower, the Company or any Guarantor, or any insolvency, bankruptcy, reorganization or other guarantor of similar proceeding affecting the Obligations Company, any Guarantor or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)their assets;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance the existence of any of claim, defense, set-off or other rights or remedies which the obligations Company or agreements contained any Guarantor may have at any time against the Company, the Banks, any other Guarantor or any other Person, whether in any of connection with this Guaranty, the Loan Documents, the transactions contemplated thereby or any other transactions;
(f) any action invalidity or inaction by the Lender under or in respect of unenforceability for any reason of the Loan Documents, any failure, lack of diligence, omission Credit Agreement or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the other Loan Documents, or any other action provision of Law purporting to prohibit the payment or inaction on performance by the part Company or any Guarantor of the Lender;Guaranteed Amount or Loan Documents, or of any other obligation to the Agent or Banks; or
(g) any voluntary other circumstances or involuntary bankruptcyhappening whatsoever, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities whether or not similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawforegoing.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that performance of This Guaranty is a continuing guaranty, and the Obligations obligations, undertakings and conditions to be performed or observed by Guarantor shall be a primary obligation, under this Guaranty shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment affected or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor impaired by reason of the Obligations or any other person or entityhappening from time to time of the following with respect to the Documents, and shall remain in full force and effect all without regard notice to, and shall not be releasedor the further consent of, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
Guarantor: (a) any lack the waiver by Landlord of validity the observance or enforceability performance by Tenant or Guarantor of any of the Loan Documents;
(b) any terminationobligations, amendmentundertakings, modification conditions or other change provisions contained in any of the Loan Documents, except to the extent of such waiver; (b) the extension, in whole or in part, of the time for payment of any amount owing or payable under the Documents; (c) the modification or amendment (whether material or otherwise) of any of the obligations of Tenant under, or any other provisions of, any of the Documents, except to the extent of such modification or amendment; (d) the taking or the omission of any of the actions referred to in any of the Documents (including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release giving of any collateral securing repayment of the Loan, or any failure consent referred to perfect any lien in such collateral;
therein); (de) any failure, omission omission, delay or delay lack on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender Landlord to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lienprovision of the Documents, security interest, including any right, power or remedy conferred on it Landlord in any of the Loan Documents, Documents or any other action or inaction on the part of Landlord granting indulgence or extension in any form; (f) the Lender;
assignment to or assumption by any third party of any or all of the rights or obligations of Tenant under all or any of the Documents; (g) the release or discharge of Tenant from the performance or observance of any voluntary obligation, undertaking or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect condition to the Borrower, the Guarantor or be performed by Tenant under any other guarantor of the ObligationsDocuments by operation of law, as applicable, including any rejection or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer disaffirmance of any of the assets of Documents in any bankruptcy or similar proceedings; (h) the Borrower, the Guarantor receipt and acceptance by Landlord or any other guarantor Person of notes, checks or other instruments for the Obligations to any other person or entity;
payment of money and extensions and renewals thereof; (i) any change action, inaction or election of remedies by Landlord which results in the ownership of the Borrower any impairment or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination destruction of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.subrogation rights
Appears in 1 contract
Samples: Lease Agreement
Continuing Guaranty. (a) The Guarantor agrees that performance Obligations under this Guaranty are continuing, absolute, unconditional and irrevocable irrespective of the validity, regularity, enforceability or value of any of the Obligations by Guarantor shall be a primary obligationand notwithstanding any claim, shall not be subject to any counterclaim (other than a mandatory counterclaim), defense or right of set-off, abatement, deferment or defense (other than off which the defense of payment) based upon any claim that Guarantor may have against the LenderSecured Party, including any such claim, defense or right based on any present or future applicable law and irrespective of any other circumstances which might otherwise constitute a legal or equitable release, defense or discharge of a surety or a guarantor. Without limiting the generality of the foregoing, the BorrowerObligations of the Guarantor hereunder shall not be discharged or impaired or otherwise affected by:
(i) any rescission, waiver, amendment or modification of any other guarantor terms or provisions of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
(a) any lack of validity or enforceability of any of the Loan Documentsdocuments evidencing the same;
(bii) any terminationfraudulent, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loanillegal, or any failure to perfect any lien in such collateral;
(d) improper act by the Borrower or the Guarantor, or any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations Borrower or the Lender Guarantor to conform or comply with any term of any the Obligations or of the Loan Documents or this Guaranty;
(iii) any failure of the Lender Secured Party to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement assert a claim or extension of time of payment demand or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert enforce or exercise any lien, security interest, right, power right or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between against the Borrower, the Guarantor, or any other guarantor of the Obligations, or for any termination of any such relationshipreason;
(jiv) any release or discharge by operation of law or otherwise of the BorrowerBorrower or the Guarantor from any Obligation or the documents evidencing the same, except by the written consent of the Secured Party or the indefeasible payment in full of the Obligations;
(v) any change in the existence, structure or ownership of the Borrower or the Guarantor or any other guarantor the legal incapacity of the Obligations from Borrower or the Guarantor;
(vi) any obligation insolvency, bankruptcy, reorganization, arrangement, readjustment, composition, liquidation or agreement contained in other similar proceeding affecting the Borrower or the Guarantor or their assets or any resulting disallowance, release or discharge of all or any portion of the Loan DocumentsObligations; or
(kvii) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor Guarantor.
(b) This Guaranty shall continue to be effective or be reinstated, as the case may be, if at any time payment or performance of the Obligations, or any part thereof, to the fullest extent permitted Secured Party is rescinded or must otherwise be returned by lawthe Secured Party, whether in connection with the insolvency, bankruptcy or reorganization of the Borrower or the Guarantor, or otherwise, all as though such payment to the Secured Party has not been made.
Appears in 1 contract
Samples: Non Recourse Guaranty Agreement (Homeland Security Capital CORP)
Continuing Guaranty. The Guarantor agrees that the performance of the Obligations by the Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that the Guarantor may have against the LenderCTI, the BorrowerFlexo, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not the Guarantor shall have any knowledge thereof):
), including without limitation: (a) any lack of validity or enforceability of any of the Loan Debt Documents;
; (b) any termination, amendment, modification or other change in any of the Loan Debt Documents, including, without limitation, any modification of the interest rate(s) described therein;
; (c) any furnishing, exchange, substitution or release of any collateral Collateral (as hereinafter defined) securing repayment of the LoanDebt, or any failure to perfect any lien in such collateral;
Collateral; (d) any failure, omission or delay on the part of the BorrowerFlexo, the Guarantor, any other guarantor of the Obligations Guarantor or the Lender CTI to conform or comply with any term of any of the Loan Debt Documents or any failure of the Lender CTI to give notice of any an Event of Default (as such term is defined in the Loan AgreementNotes);
; (e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Debt Documents;
; (f) any action or inaction by the Lender CTI under or in respect of any of the Loan Debt Documents, any failure, lack of diligence, omission or delay on the part of the Lender CTI to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Debt Documents, or any other action or inaction on the part of the Lender;
CTI; (g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the BorrowerFlexo, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
; (h) any merger or consolidation of the Borrower Flexo into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, Flexo or the Guarantor or any other guarantor of the Obligations to any other person or entity;
; (i) any change in the ownership of the Borrower Flexo or any change in the relationship between the BorrowerFlexo, the Guarantor, or any other guarantor of the Obligations, Guarantor or any termination of any such relationship;
; (j) any release or discharge by operation of law of the Borrower, Flexo or the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Debt Documents; or
or (k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower Flexo or the Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
(a) WII guarantees that the Guaranteed Obligations shall be paid strictly in accordance with the terms of this Agreement and the other Loan Documents. WII agrees that, to the maximum extent permitted by applicable law, the Guaranteed Obligations and Loan Documents to which either Borrower is a party may be extended or renewed, and indebtedness thereunder repaid and reborrowed in whole or in part, without notice to or assent by WII, and that WII shall remain bound upon this Guaranty notwithstanding any lack of validity extension, renewal or enforceability other alteration of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Guaranteed Obligations or the Lender to conform or comply with any term of any of the such Loan Documents or any failure repayment and reborrowing of Loans to the Borrowers. The obligations of WII under this Guaranty are absolute and unconditional irrespective of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waivervalue, compromisegenuineness, releasevalidity, settlement regularity or extension of time of payment or performance or observance of any enforceability of the obligations or agreements contained in any of the Borrowers under this Agreement or any other Loan Documents;Document or any substitution, release or exchange of any other guarantee of or security for the Obligations. To the maximum extent permitted by applicable law, except as otherwise expressly provided in this Agreement or any other Loan Document to which WII is a party, the obligations of WII under this Guaranty shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms hereof under any circumstances whatsoever, including:
(fi) any action modification, amendment, supplement, renewal, extension for any period, increase, decrease, alteration or inaction by the Lender under rearrangement of all or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfectGuaranteed Obligations, enforceor of this Agreement or any other Loan Document executed in connection herewith, assert or exercise any liencontract or understanding among the Borrowers, security interest, right, power or remedy conferred on it in any of the Loan DocumentsAdministrative Agent and/or the Lenders, or any other action Person, pertaining to the Guaranteed Obligations;
(ii) any adjustment, indulgence, forbearance or inaction compromise that might be granted or given by the Lenders to WII, either Borrower or any other Person liable on the Guaranteed Obligations;
(iii) the insolvency, bankruptcy, arrangement, adjustment, composition, liquidation, disability, dissolution or lack of power of WII, either Borrower or any other Person at any time liable for the payment of all or part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor Guaranteed Obligations; or any other guarantor dissolution or winding up of the Obligations, as applicable, WII or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entityeither Borrower, or any sale, lease or transfer of any or all of the assets of the WII or either Borrower, the Guarantor or any other guarantor changes in the shareholders of the Obligations to WII or either Borrower, or any other person reorganization of WII or entityeither Borrower;
(iiv) the invalidity, illegality or unenforceability of all or any change in the ownership part of the Borrower Guaranteed Obligations, or any change document or agreement executed in connection with the relationship between Guaranteed Obligations, for any reason whatsoever, including the fact that (A) the Guaranteed Obligations, or any part thereof, exceed the amount permitted by law, (B) the act of creating the Guaranteed Obligations, or any part thereof is ultra vires, (C) the officers or representatives executing the documenxx xx otherwise creating the Guaranteed Obligations acted in excess of their authority, (D) the Guaranteed Obligations or any part thereof violate applicable usury laws, (E) WII or either Borrower has valid defenses, claims, and offsets (whether at law or in equity, by agreement or by statute) which render the Guaranteed Obligations wholly or partially uncollectible from WII or either Borrower, (F) the Guarantorcreation, performance, or repayment of the Guaranteed Obligations (or execution, delivery and performance of any document or instrument representing any part of the Guaranteed Obligations or executed in connection with any of the Guaranteed Obligations, or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or (G) this Agreement, any other Loan Document, or any other guarantor document or instrument pertaining to any of the ObligationsGuaranteed Obligations has been forged or otherwise is irregular or not genuine or authentic;
(v) any full or partial release of the liability of WII or either Borrower on the Guaranteed Obligations or any part thereof, or any termination other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee, or assure the payment of the Guaranteed Obligations or any part thereof; it being recognized, acknowledged, and agreed by WII that WII may be required to pay the Guaranteed Obligations in full without assistance or support of any such relationshipother Person, and that WII has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that any other Person shall be liable to perform the Guaranteed Obligations or that the Administrative Agent or any Lender shall look to any other Person to perform the Guaranteed Obligations;
(jvi) the taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release release, surrender, exchange, subordination, deterioration, waste, loss or discharge by operation impairment of law any collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the BorrowerGuaranteed Obligations;
(viii) the failure of the Administrative Agent, the Guarantor Lenders or any other guarantor Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(ix) the fact that any collateral, security or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations from shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any obligation other Lien; it being recognized and agreed by WII that WII is not entering into this Guaranty in reliance on, or agreement contained in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the Loan Documentscollateral for the Guaranteed Obligations;
(x) any payment by either Borrower or WII to the Administrative Agent or any Lender is held to constitute a preference under bankruptcy or insolvency laws, or for any other reason either the Administrative Agent or any Lender is required to refund such payment or pay such amount to either Borrower, WII, or any other Person; or
(kxi) any other action taken or omitted to be taken with respect to this Agreement, any other Loan Document, the Guaranteed Obligations, or the security and collateral therefor, whether or not such action or omission prejudices WII or increases the likelihood that WII shall be required to pay the Guaranteed Obligations pursuant to the terms hereof; it being the unambiguous and unequivocal intention of WII that WII shall be obligated to pay the Guaranteed Obligations when due, notwithstanding any occurrence, circumstance, happening or event, action, or omission whatsoever, whether similar contemplated or dissimilar to the foregoing uncontemplated, and whether foreseen or unforeseennot otherwise or particularly described herein, which otherwise might constitute a legal or equitable defense or discharge except for the full and final payment and satisfaction of the liabilities Guaranteed Obligations after the termination of a guarantor or surety or which otherwise might limit recourse against all of the Borrower or the Guarantor Commitments.
(b) WII further agrees that, to the fullest extent permitted by law, as between WII, or the one hand, and the Lenders and the Administrative Agent, on the other hand, (i) the maturity of the Obligations may be accelerated as provided in Section 8.01 for the purposes of this Guaranty, notwithstanding any stay, injunction or other prohibition preventing the acceleration of the Obligations as against either Borrower and (ii) in the event of any purported acceleration (whether by declaration or automatic) of the Obligations as provided in Section
8.01 the Obligations (whether or not due and payable) shall forthwith become due and payable by WII for the purpose of this Guaranty.
Appears in 1 contract
Samples: 364 Day Revolving Credit Agreement (Weatherford International LTD)
Continuing Guaranty. The Guarantor agrees that performance the obligations of ------------------- Guarantor pursuant to Section 1 above and any other provision of any of the Obligations by Guarantor Loan --------- Instruments shall be a primary obligationobligations, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Borrower's Obligations or any other person or entityPerson, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):) including, without limitation:
(a) any lack of validity or enforceability of any of the Loan DocumentsInstruments;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described thereinInstruments;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment Collateral, including, without limitation, any furnishing, exchange, substitution or release of any Collateral which may be effected pursuant to the terms of Section 7.9 of the LoanLoan Agreement, or any failure to perfect ----------- any lien Lien in such collateralany of the Collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Borrower's Obligations or the Lender to conform or comply with any term of any of the Loan Documents Instruments or any failure of the Lender to give notice of any Incipient Default or Event of Default (as such term is defined in the Loan Agreement)Default;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan DocumentsInstruments;
(f) any action or inaction by the Lender under or in respect of any of the Loan DocumentsInstruments, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it upon Lender in any of the Loan DocumentsInstruments, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Borrower's Obligations, as applicable, or any of their respective property Property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower Borrower, Guarantor or any other guarantor of Borrower's Obligations into or with any entityPerson, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Borrower's Obligations to any other person or entityPerson;
(i) any change in the ownership of the capital stock of Borrower or any other guarantor of Borrower's Obligations or any change in the relationship between the Borrower, the Guarantor, Guarantor or any other guarantor of the Borrower's Obligations, or any termination of any such relationship;
(j) to the extent permitted by law, any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Borrower's Obligations from any obligation or agreement contained in any of the Loan DocumentsInstruments; or
(k) to the extent permitted by law, any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawGuarantor.
Appears in 1 contract
Samples: Loan Agreement (GDC Group Inc)
Continuing Guaranty. The Each Guarantor guarantees that the ------------------- Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement, the Notes and the other Loan Documents. Each Guarantor agrees that performance the Guaranteed Obligations and Loan Documents may be extended or renewed, and Loans repaid and reborrowed in whole or in part, without notice to or assent by such Guarantor, and that it will remain bound upon this Guaranty notwithstanding any extension, renewal or other alteration of any Guaranteed Obligations or Loan Documents, or any repayment and reborrowing of Loans. To the Obligations maximum extent permitted by applicable law, the obligations of each Guarantor under this Guaranty shall be a primary obligationabsolute, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entityunconditional and irrevocable, and shall remain be performed strictly in full force and effect without regard toaccordance with the terms hereof under any circumstances whatsoever, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):including:
(a) any lack of validity extension, renewal, modification, settlement, compromise, waiver or enforceability release in respect of any of the Loan DocumentsGuaranteed Obligations;
(b) any terminationextension, renewal, amendment, modification modification, rescission, waiver or other change release in respect of any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishingrelease, exchange, substitution substitution, non-perfection or invalidity of, or failure to exercise rights or remedies with respect to, any direct or indirect security for any Guaranteed Obligations, including the release of any collateral securing repayment of the Loan, Guarantor or other Person liable on any failure to perfect any lien in such collateralGuaranteed Obligations;
(d) any failurechange in the corporate existence, omission structure or delay on the part ownership of the BorrowerCompany, any Guarantor, or any insolvency, bankruptcy, reorganization or other similar proceeding affecting the Company, such Guarantor, any other guarantor of the Obligations Guarantor or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)their respective assets;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance the existence of any of claim, defense, set-off or other rights or remedies which such Guarantor at any time may have against the obligations Company, or agreements contained the Company or such Guarantor may have at any time against the Administrative Agent, any Bank, any other Guarantor or any other Person, whether in any of connection with this Guaranty, the Loan Documents, the transactions contemplated thereby or any other transaction other than by the payment in full by the Company of the Guaranteed Obligations after the termination of the Commitments of the Banks;
(f) any action invalidity or inaction by the Lender under unenforceability for any reason of this Agreement or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the other Loan Documents, or any provision of law purporting to prohibit the payment or performance by the Company, such Guarantor or any other action or inaction on the part Guarantor of the Lender;Guaranteed Obligations or Loan Documents, or of any other obligation to the Administrative Agent or any Bank; or
(g) any voluntary other circumstances or involuntary bankruptcyhappening whatsoever, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities whether or not similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by lawforegoing.
Appears in 1 contract
Continuing Guaranty. (i) The Guarantor agrees that performance Obligations under this Guaranty are continuing, absolute, unconditional and irrevocable irrespective of the validity, regularity, enforceability or value of any of the Obligations by Guarantor shall be a primary obligationand notwithstanding any claim, shall not be subject to any counterclaim (other than a mandatory counterclaim), defense or right of set-off, abatement, deferment or defense (other than off which the defense of payment) based upon any claim that Guarantor Guarantors may have against the LenderSecured Party, including any such claim, defense or right based on any present or future applicable law and irrespective of any other circumstances which might otherwise constitute a legal or equitable release, defense or discharge of a surety or a guarantor. Without limiting the generality of the foregoing, the BorrowerObligations of each Guarantor hereunder shall not be discharged or impaired or otherwise affected by:
(A) any rescission, waiver, amendment or modification of any other guarantor terms or provisions of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):the documents evidencing the same.
(aB) any lack of validity or enforceability of any of the Loan Documents;
(b) any terminationfraudulent, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loanillegal, or improper act by any failure to perfect any lien in such collateral;
(d) Guarantor or any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations or the Lender Guarantor to conform or comply with any term of any the Obligations or of the Loan Documents or this Guaranty;
(C) any failure of the Lender Secured Party to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement assert a claim or extension of time of payment demand or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert enforce or exercise any lien, security interest, right, power right or remedy conferred on it in against any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or for any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceedingreason;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(jD) any release or discharge by operation of law or otherwise of any Guarantor from any Obligation or the documents evidencing the same;
(E) any change in the existence, structure or ownership of any Guarantor or the legal incapacity of any Guarantor;
(F) any insolvency, bankruptcy, reorganization, arrangement, readjustment, composition, liquidation or other similar proceeding affecting any Guarantor or its/his assets or any resulting disallowance, release or discharge of all or any portion of the Borrower, Obligations;
(G) the failure by any Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documentsperson to sign this Guaranty; orand
(kH) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against any Guarantor.
(ii) This Guaranty shall continue to be effective or be reinstated, as the Borrower case may be, if at any time payment or performance of the Guarantor Obligations, or any part thereof, to the fullest extent permitted Secured Party is rescinded or must otherwise be returned by lawthe Secured Party upon the insolvency, bankruptcy or reorganization of the Guarantors, all as though such payment to the Secured Party has not been made.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that performance the obligations of the Obligations by Guarantor pursuant to Paragraph 1 above shall be a primary obligationobligation of Guarantor, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the LenderPromisee, the BorrowerCompany, any other guarantor of the Obligations Monroe or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, by any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or of enforceability of any of the Loan DocumentsNote or the Agreement;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of Note or the interest rate(s) described thereinAgreement;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the BorrowerCompany, the Guarantor, any other guarantor of the Obligations Guarantor or the Lender Promisee to conform or comply with any term of any of the Loan Documents Note or the Agreement or any failure of the Lender Promisee to give notice of any Event of Default (as such term is defined in the Loan Agreement)default thereunder;
(ed) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan DocumentsNote or the Agreement;
(fe) any action or inaction by the Lender Promisee under or in respect of any of the Loan DocumentsNote or the Agreement, any failure, lack of diligence, omission or delay on the part of the Lender Promisee to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan DocumentsNote or the Agreement, or any other action or inaction on the part of the LenderPromisee;
(gf) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicableCompany, or any of their respective its property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(hg) any merger or consolidation of the Borrower into or with any entityCompany, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entityCompany;
(ih) any change in the ownership of the Borrower capital stock of the Company or any change in the relationship between the Borrower, the Company and Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(ji) to the extent permitted by law, any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations Company from any obligation or agreement contained in any of the Loan DocumentsNote or the Agreement; or
(kj) to the extent permitted by law, any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower Company or the Guarantor to the fullest extent permitted by lawGuarantor.
Appears in 1 contract
Samples: Guaranty (Noble Internatinal LTD)
Continuing Guaranty. The Guarantor agrees that performance the obligations of Guarantor pursuant to this Guaranty and any of the Obligations by other Related Documents to which Guarantor is a party (collectively, the "Guarantor's Obligations") shall be a primary obligationobligations of Guarantor, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations Borrower or any other person or entityPerson, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, by any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of the Secured Credit Agreement or any of the Loan Related Documents;
(b) any termination, amendment, modification or other change in the Secured Credit Agreement or any of the Loan Related Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the LoanCollateral, or any failure to perfect any lien Lien in such collateralany of the Collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations Borrower or the Lender to conform or comply with any term of the Secured Credit Agreement or any of the Loan Related Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement)Default;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in the Secured Credit Agreement or any of the Loan Related Documents;
(f) any action or inaction by the Lender under or in respect of the Secured Credit Agreement or any of the Loan Related Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it Lender in the Secured Credit Agreement or any of the Loan Related Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the BorrowerGuarantor, the Guarantor any Borrower or any other guarantor Subsidiary of the Obligations, as applicable, any Borrower or any of their respective property Property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the any Borrower or any Subsidiary of any Borrower into or with any entityPerson, or any sale, lease or transfer of any of the assets of the BorrowerGuarantor, the Guarantor any Borrower or any other guarantor Subsidiary of the Obligations any Borrower to any other person or entityPerson;
(i) any change in the ownership of the any Borrower or any Subsidiary of any Borrower or any change in the relationship between the Borrower, the Guarantor, or among Guarantor and any Borrower or any other guarantor Subsidiary of the Obligationsany Borrower, or any termination of any such relationship;
(j) any release or discharge by operation of law of the BorrowerGuarantor, the Guarantor any Borrower or any other guarantor Subsidiary of the Obligations any Borrower from any obligation or agreement contained in the Secured Credit Agreement or any of the Loan Related Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Guarantor, any Borrower or the Guarantor to the fullest extent permitted by lawany Subsidiary of any Borrower.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that This Guaranty is an absolute, unconditional and continuing guaranty of performance and payment of the Guaranteed Obligations and the Recourse Obligations (collectively, the “Obligations”). No notice of the Obligations by to which this Guaranty may apply, or of any renewal, modification, consolidation, replacement, extension or amendment thereof, need be given to Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor and none of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not foregoing acts will release Guarantor shall have any knowledge thereof):
from liability hereunder. Guarantor hereby expressly waives: (a) demand for payment or performance, presentment, protest, notice of dishonor, nonpayment or nonperformance on any lack of validity or enforceability of any and all forms of the Loan Documents;
Obligations; (b) notice of acceptance of this Guaranty and notice of any terminationliability to which it may apply; (c) all other notices and demands of any kind and description relating to the Obligations now or hereafter provided for by any statute, amendmentlaw, modification rule or other change in regulation; (d) any and all rights or defenses arising by reason of the Loan Documentselection of remedies by Lender that destroys or otherwise adversely affects Guarantor’s subrogation rights or Guarantor’s rights to proceed against Borrower for reimbursement, including, without limitation, loss of rights Guarantor may suffer by reason of any modification law limiting, qualifying or discharging the Obligations; (e) any disability or other defense of Borrower of any other guarantor, or of any other person, or by reason of the interest rate(s) described therein;
cessation of Borrower’s liability from any cause whatsoever, other than payment in full in legal tender of the Obligations; (cf) any furnishing, exchange, substitution or release right to claim discharge of the Obligations on the basis of impairment of any collateral securing repayment of for the Loan, or Obligations; (g) any failure defenses given to perfect any lien in such collateral;
(d) Guarantor by any failure, neglect or omission or delay on by Lender to perfect in any manner the part of the Borrower, the Guarantor, any other guarantor collection of the Obligations or the Lender security given therefor, including the failure or omission to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets seek a deficiency judgment against Borrower; and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger and all other defenses of Borrower pertaining to the Obligations, including any Borrower counterclaim or consolidation claim of recoupment or setoff except the Borrower into defense of discharge by payment. Guarantor will not be exonerated with respect to Guarantor’s liability under this Guaranty by any act or with any entity, thing except payment or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor performance of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law . Guarantor warrants and agrees that each of the Borrowerwaivers set forth above is made with Guarantor’s full knowledge of its significance and consequences and that, under the circumstances, the Guarantor waivers are reasonable and not contrary to public policy or law. If such waiver is determined to be contrary to any other guarantor of the Obligations from any obligation applicable law or agreement contained in any of the Loan Documents; or
(k) any other occurrencepublic policy, circumstance, happening or event, whether similar or dissimilar such waiver will be effective only to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law or public policy. Without limiting the generality of the foregoing, Guarantor waives any setoff or offset rights that Guarantor might otherwise have under applicable law, as amended from time to time (or under any corresponding present or future rule of law in any jurisdiction) by reason of any release of fewer than all persons who have guaranteed performance of the Obligations.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by Guarantor Guaranty shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard tocontinuing guaranty, and shall not be releaseddischarged, discharged impaired or affected in any way by: (i) existence or non-existence, any circumstance or condition (whether the continuance or not Guarantor shall have any knowledge thereof):
(a) any lack of validity or enforceability non-continuance, of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay obligation on the part of Tenant with respect to the Borrower, Lease; (ii) any forbearance or extension of the Guarantor, time of payment or performance of any other guarantor of the Obligations or the Lender Tenant's Obligations; (iii) any and all changes in the terms, covenants or conditions of the Lease or of any document evidencing or securing performance of the Obligations or Tenant's Obligations hereafter made or granted; (iv) the release or agreement not to conform xxx without reservation of rights of anyone liable in any way for payment or comply with any term performance of any of the Loan Documents Obligations or Tenant's Obligations; (v) the power or authority or lack thereof of Tenant to enter into, or to execute, acknowledge or deliver the Lease; (vi) the validity or invalidity of the Lease or any failure of the Lender to give notice of any Event of Default portion thereof; (as such term is defined in the Loan Agreement);
(evii) any waiver, compromise, release, settlement defenses whatsoever that Tenant or extension of time of payment or any other Person may have to the performance or observance of any of the obligations Obligations or agreements contained the Tenant's Obligations; (viii) the existence or non-existence of Tenant as a legal entity; (ix) any limitation or exculpation of liability of Tenant that may be expressed in the Lease; (x) the transfer by Tenant of all, or any part of any interest in all or any part of the Loan Documents;
Premises described in the Lease; (fxi) any action sale, pledge, surrender, indulgence, alteration, substitution, exchange, release, partial release, modification or inaction by the Lender under or in respect other disposition of any of the Loan Documentscollateral or other security from time to time or at any time securing Tenant's Obligations, all of which Landlord is expressly authorized to make from time to time; (xii) the acceptance by Landlord of part of performance of the Tenant's Obligations, or any failure, lack of diligence, neglect or omission or delay on the part of the Lender Landlord to perfectrealize on, enforce, assert preserve or exercise protect any lien, security interest, right, power or remedy conferred on it in any portion of the Loan DocumentsPremises, or any other action personal property of Tenant or inaction on the part to exercise any lien upon, or right of appropriation of, any monies, credits or property of Tenant toward liquidation of the Lender;
Tenant's Obligations; (gxiii) the failure by Landlord or anyone acting on behalf of Landlord to perfect or maintain perfection of any lien or security interest upon any collateral given at any time to secure the payment of the Obligations or Tenant's Obligations; (xiv) any voluntary right or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for claim whatsoever that Guarantor may have against Tenant or Landlord or the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities successors or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer assigns of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person or entity;
(i) any change in the ownership of the Borrower them or any change in control, ownership or affiliation among any Guarantor and Tenant; or (xv) any defense (other than the relationship between payment, performance or observance in full of all of the BorrowerObligations and Tenant's Obligations) that Guarantor may have as to its undertakings, the Guarantorliabilities and Obligations hereunder, including any defenses based upon any legal disability of Tenant or any other guarantor discharge or limitation of the Obligationsliability of Tenant to Landlord, whether consensual or any termination of any such relationship;
(j) any release or discharge arising by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations bankruptcy, insolvency or debtor-relief proceeding, or from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrencecause, circumstance, happening or event, whether similar or dissimilar to the foregoing each and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable every such defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted being hereby waived by law.Guarantor. 992507_9 8
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that performance the obligations of Guarantor pursuant to this Guaranty and any of the Obligations by other Loan Instruments to which Guarantor is a party (the "Guarantor's Obligations") shall be a primary obligationobligations of Guarantor, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Agent or any Lender, the Borrower, any other guarantor of the Obligations either Borrower or any other person or entityPerson, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, by any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of any of the Loan DocumentsInstruments;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described thereinInstruments;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the LoanCollateral, or any failure to perfect any lien Lien in such collateralany of the Collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, Agent or either Borrower or any other guarantor of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents Instruments or any failure of the Agent or any Lender to give notice of any Incipient Default or Event of Default (as such term is defined in the Loan Agreement)Default;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan DocumentsInstruments;
(f) any action or inaction by the Agent or any Lender under or in respect of any of the Loan DocumentsInstruments, any failure, lack of diligence, omission or delay on the part of the Agent or any Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it Agent or any Lender in any of the Loan DocumentsInstruments, or any other action or inaction on the part of the Agent or any Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the either Borrower or Guarantor or any other guarantor of the Obligations, as applicable, or any of their respective property Property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the either Borrower or Guarantor into or with any entityPerson, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations either Borrower to any other person or entityPerson;
(i) any change in the ownership of the shares of capital stock of either Borrower or any change in the relationship between the Guarantor and either Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) to the extent permitted by law, any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations either Borrower from any obligation or agreement contained in any of the Loan DocumentsInstruments; or
(k) to the extent permitted by law, any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower Guarantor or the Guarantor to the fullest extent permitted by laweither Borrower.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that Guarantor’s obligations under this Guaranty are primary, absolute and unconditional. Only full and irrevocable payment and performance of the Obligations by Guarantor shall be a primary obligation, shall Guaranteed Debt will discharge Guarantor’s obligations under this Guaranty. Guarantor’s obligations under this Guaranty are not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged impaired or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
: (a) any lack of validity the genuineness, validity, regularity or enforceability of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loanof, or any failure to perfect any lien amendment or change in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations Agreement or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the other Loan Documents, or any change in or extension of the manner, place or terms of payment of, all or any portion of the Guaranteed Debt; (b) Lender’s taking or failure to take any action to enforce the Agreement or the other action Loan Documents, or inaction on Lender’s exercise or failure to exercise any remedy, power or privilege contained in the Loan Documents or available at law or otherwise, or the waiver by Lender of any provisions of the Agreement or the other Loan Documents; (c) any impairment, modification, change, release or limitation in any manner of the liability of Borrower or its estate in bankruptcy, or of any remedy for the enforcement of Borrower’s liability, resulting from the operation of any present or future provision of the bankruptcy laws or any other statute or regulation, or the dissolution, bankruptcy, insolvency or reorganization of Borrower; (d) the merger or consolidation of Borrower, or any sale or transfer by Borrower of all or any part of its assets or property; (e) any claim Guarantor may have against any other Obligor, including any claim of contribution; (f) the Lender;
release, in whole or in part, of any other guarantor (if more than one), Borrower or any other Obligor; (g) any voluntary settlement or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and liabilities or similar events or proceedings compromise with any Obligor with respect to any Guaranteed Debt or the Borrower, subordination of the Guarantor payment of all or any part of the Guaranteed Debt to the payment of any other debts or claims that may at any time be due and owing to Lender or any other guarantor of the Obligations, as applicable, Person; or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger other action or consolidation circumstance that may (with or without notice to or knowledge of the Borrower into Guarantor) in any manner or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations to any other person extent vary the risks of Guarantor under this Guaranty or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense discharge or discharge defense. Guarantor’s obligations under this Guaranty are in addition to Guarantor’s obligations under any other guaranties of the liabilities Guaranteed Debt or any other obligations of a guarantor or surety or which otherwise might limit recourse against the Borrower or any other Persons, and this Guaranty does not affect or invalidate those other guaranties. Guarantor’s liability to Lender is deemed to be the aggregate liability of Guarantor to under the fullest extent permitted terms of this Guaranty and any other guaranties made by lawGuarantor in favor of Lender before or after the date of this Guaranty.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that performance of the Borrower’s Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Borrower’s Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of any the Note, unless such lack of the Loan Documentsvalidity or enforceability arises from Lender’s willful misconduct;
(b) any termination, amendment, modification or other change in any of the Loan DocumentsNote, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Borrower’s Obligations or the Lender to conform or comply with any term of any of the Loan Documents Note or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan AgreementNote);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan DocumentsNote;
(f) any action or inaction by the Lender under or in respect of any of the Loan DocumentsNote, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan DocumentsNote, or any other action or inaction on the part of Lender unless the act or failure to act is found to be gross negligence or willful misconduct on the part of Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the Borrower, the Guarantor Borrower or any other guarantor of the Borrower’s Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower into or with any entity, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Borrower’s Obligations to any other person or entity;
(i) any change in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, Guarantor or any other guarantor of the Borrower’s Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Borrower’s Obligations from any obligation or agreement contained in any of the Loan DocumentsNote; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guarantor to the fullest extent permitted by law.
Appears in 1 contract
Continuing Guaranty. The Subject to the terms and conditions of SECTION 5 ------------------- below, Guarantor agrees that performance of the Guarantor's Obligations by Guarantor shall be a primary obligationobligations of Guarantor, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the LenderFINOVA, the Borrower, any other guarantor of the Obligations Borrower or any other person or entityPerson, and shall remain in full force and effect without regard to, and shall not be released, discharged discharged, limited or affected in any way by, by any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):), including, without limitation:
(a) any lack of validity or enforceability of any of the Loan DocumentsInstruments;
(b) any termination, restatement, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described thereinInstruments;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the LoanCollateral, or any failure to perfect any lien Lien in such collateralany Collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Obligations Borrower or the Lender FINOVA to conform or comply with any term of any of the Loan Documents Instruments or any failure of the Lender FINOVA to give notice of any Incipient Default or any Event of Default (as such term is defined in the Loan Agreement)Default;
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan DocumentsInstruments;
(f) any action or inaction by the Lender FINOVA under or in respect of any of the Loan DocumentsInstruments, any failure, lack of diligence, omission or delay on the part of the Lender FINOVA to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it FINOVA in any of the Loan DocumentsInstruments, or any other action or inaction on the part of the LenderFINOVA;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling of assets and and. liabilities or similar events or proceedings with respect to the Borrower, the Guarantor or any other guarantor of the Obligations, as applicable, Borrower or any of their respective property Property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Guarantor or Borrower into or with any entityPerson, or any sale, lease or transfer of any of the assets of the Borrower, the Guarantor or any other guarantor of the Obligations Borrower to any other person or entityPerson;
(i) any change in the ownership of the relationship between. Guarantor, Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the ObligationsPerson, or any termination of any such relationship;
(j) to the extent permitted by law, any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations Borrower from any obligation or agreement contained in any of the Loan DocumentsInstruments; or
(k) to the extent permitted by law, any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower Guarantor or the Guarantor to the fullest extent permitted by lawBorrower.
Appears in 1 contract
Continuing Guaranty. The Guarantor agrees that performance (a) this is a ------------------- continuing guaranty, (b) the Guaranteed Obligations hereunder shall extend to each and every extension of credit under and renewal, if any, of the Obligations by Guarantor shall be a primary obligationRevolving Loan Agreement, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense regardless of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of whether the Obligations or any other person the Guaranteed Obligations may, in successive transactions, be paid, repaid, advanced, or entityrenewed from time to time, and (c) this Guaranty shall remain in full force and effect without regard tountil the Guaranteed Obligations are paid in full and have been completely satisfied, and shall not be released, discharged impaired or affected in any way by, or be deemed to be satisfied by, nor shall Guarantor or the Collateral be exonerated, discharged, or released by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):of the following events:
(a) Agent's or Lenders' exercise or enforcement of, or failure or delay in exercising or enforcing, legal proceedings to collect the Obligations or any lack of validity power, right, or enforceability of remedy with respect to any of the Loan Documents;
Obligations, the Collateral, or the Guaranteed Obligations including: (bi) any termination, amendment, modification action or other change in inaction of Agent or any of the Loan DocumentsLenders to perfect, includingprotect, without limitationor enforce any security interest in any Collateral; (ii) any impairment or invalidity of the Collateral or any suspension of Agent's or Lenders' right to enforce against Borrower any Obligations, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the LoanGuaranteed Obligations, or any failure to perfect any security interest in or lien in such collateral;
upon the Collateral; or (diii) any failurechange in the time, omission manner, or delay on the part place of the Borrowerpayment of, the Guarantoror in any other term of, any other guarantor or all of the Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan DocumentsGuaranteed Obligations, or any other action amendment to or inaction on waiver of the Revolving Loan Agreement, any other Loan Document, or any other agreement or instrument governing or evidencing any of the Obligations or the Guaranteed Obligations; provided that Agent shall not enter into any written amendment to the Revolving Loan Agreement, unless such an amendment is done as part of a workout or restructure occurring after an event of default under the Lender;Revolving Loan Agreement, that provides for an extension of the final maturity date or an increase in the principal amount of the loan in excess of Thirty Million Dollars ($30,000,000).
(gb) any voluntary or involuntary insolvency, bankruptcy, insolvency, reorganization, arrangement, readjustmentadjustment, composition, assignment for the benefit of creditors, composition, receivershipappointment of a receiver or trustee for all or any part of Borrower's or Guarantor's assets, liquidation, marshaling winding-up, or dissolution of assets and liabilities Borrower or similar events Guarantor;
(c) any limitation, discharge, cessation, or proceedings with respect to the Borrower, the Guarantor or any other guarantor partial satisfaction of the Obligations, as applicableother than payment in full of the Obligations or other limitation of the Borrower's Obligations specifically included in the Revolving Loan Agreement, or of any Guaranteed Obligations, whether by operation of any statute, regulation, or rule of law, or otherwise, regardless of the intervention or omission of Agent or Lenders or any invalidity, voidability, unenforceability, or irregularity, or future change to or amendment of, in whole or in part, the Revolving Loan Agreement, this Guaranty, any other Loan Document, or any other document evidencing any Obligations; provided that Agent shall not enter into any written amendment to the Revolving Loan Agreement, unless such an amendment is done as part of their respective property a workout or creditorsrestructure occurring after an event of default under the Revolving Loan Agreement, that provides for an extension of the final maturity date or an increase in the principal amount of the loan in excess of Thirty Million Dollars ($30,000,000);
(d) any merger, acquisition, consolidation or change in structure of Borrower or Guarantor; or any sale, lease, transfer, or other disposition of any action taken by or all of the assets or shares of Borrower or Guarantor;
(e) any trustee assignment or receiver other transfer, in whole or by in part, of Agent's or any court of the Lenders' interest in and rights under the Revolving Loan Agreement or any such proceedingother Loan Document, including this Guaranty, or of Agent's or any of the Lenders' interest in the Obligations, the Guaranteed 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 Uniform Commercial Code 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 Obligations, the Guaranteed Obligations, or the Collateral;
(g) any cancellation, renunciation, or surrender of any debt instrument evidencing the Obligations or the Guaranteed Obligations;
(h) Agent's or any merger or consolidation of the Borrower into or with any entityLenders' vote, claim, distribution, election, acceptance, action, or inaction in any sale, lease bankruptcy or transfer of any of reorganization case related to the assets of the BorrowerCollateral, the Guarantor Obligations, or any other guarantor of the Obligations to any other person or entityGuaranteed Obligations;
(i) any change other action or circumstances that might otherwise constitute a defense available to, or a legal or equitable discharge of, any surety, guarantor or pledgor other than payment in full of the Obligations or other limitation of the Borrower's Obligations specifically included in the ownership of the Borrower or any change in the relationship between the Borrower, the Guarantor, or any other guarantor of the Obligations, or any termination of any such relationship;Revolving Loan Agreement; or
(j) the fact that any release or discharge by operation of law of the Borrower, the Guarantor or any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower or the Guaranteed Obligations may become due or payable in connection with or by reason of any agreement or transaction that may be illegal, invalid, or unenforceable in whole or in part; it being agreed by Guarantor to that the fullest extent permitted by lawGuaranteed Obligations shall not be discharged.
Appears in 1 contract
Samples: Floating Continuing Guaranty (Alexander & Baldwin Inc)
Continuing Guaranty. The Each Guarantor agrees that performance the obligations of such Guarantor pursuant to Section 1 above and any other provision of any of the Obligations by Guarantor Loan Documents shall be a primary obligationobligations, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that such Guarantor may have against the Lender, the BorrowerMMI, any other guarantor of the MMI's Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not such Guarantor shall have any knowledge thereof):), including without limitation:
(a) any lack of validity or enforceability of the Note or any of the other Loan Documents;
(b) any termination, amendment, modification or other change in the Note or any of the other Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the BorrowerMMI, the any Guarantor, any other guarantor of the MMI's Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);the
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in the Note or any of the other Loan Documents;
(f) any action or inaction by the Lender under or in respect of the Note or any of the other Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in the Note or any of the other Loan Documents, or any other action or inaction on the part of the Lender;
(g) any voluntary or involuntary bankruptcy, insolvency, reorganization, arrangement, readjustment, assignment for the benefit of creditors, composition, receivership, liquidation, marshaling marshalling of assets and liabilities or similar events or proceedings with respect to the BorrowerMMI, the any Guarantor or any other guarantor of the MMI's Obligations, as applicable, or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation of the Borrower MMI into or with any entity, or any sale, lease or transfer of any of the assets of the BorrowerMMI, the any Guarantor or any other guarantor of the MMI's Obligations to any other person or entity;
(i) any change in the ownership of the Borrower MMI or any change in the relationship between the BorrowerMMI, the Guarantor, any Guarantor or any other guarantor of the MMI's Obligations, or any termination of any such relationship;
(j) any release or discharge by operation of law of the Borrower, the Guarantor MMI or any other guarantor of the MMI's Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, whether similar or dissimilar to the foregoing and whether foreseen or unforeseen, which otherwise might constitute a legal or equitable defense or discharge of the liabilities of a guarantor or surety or which otherwise might limit recourse against the Borrower MMI or the Guarantor to the fullest extent permitted by lawany Guarantor.
Appears in 1 contract
Samples: Guaranty (Metal Management Inc)
Continuing Guaranty. The Guarantor agrees that performance of the Obligations by Guarantor shall be a primary obligation, shall not be subject to any counterclaim (other than a mandatory counterclaim), set-off, abatement, deferment or defense (other than the defense of payment) based upon any claim that Guarantor may have against the Lender, the Borrower, any other guarantor of the Obligations or any other person or entity, and shall remain in full force and effect without regard to, and shall not be released, discharged or affected in any way by, any circumstance or condition (whether or not Guarantor shall have any knowledge thereof):
(a) The Company guarantees that the Guaranteed Obligations will be paid strictly in accordance with the terms of this Agreement and the other Loan Documents. The Company agrees that, to the maximum extent permitted by applicable law, the Guaranteed Obligations and Loan Documents to which the Subsidiary Borrower is a party may be extended or renewed, and indebtedness thereunder repaid and reborrowed in whole or in part, without notice to or assent by the Company, and that it will remain bound upon this Guaranty notwithstanding any lack of validity extension, renewal or enforceability other alteration of any of the Loan Documents;
(b) any termination, amendment, modification or other change in any of the Loan Documents, including, without limitation, any modification of the interest rate(s) described therein;
(c) any furnishing, exchange, substitution or release of any collateral securing repayment of the Loan, or any failure to perfect any lien in such collateral;
(d) any failure, omission or delay on the part of the Borrower, the Guarantor, any other guarantor of the Guaranteed Obligations or the Lender to conform or comply with any term of any of the Loan Documents or any failure of the Lender to give notice of any Event of Default (as such term is defined in the Loan Agreement);
(e) any waiver, compromise, release, settlement or extension of time of payment or performance or observance of any of the obligations or agreements contained in any of the Loan Documents;
(f) any action or inaction by the Lender under or in respect of any of the Loan Documents, any failure, lack of diligence, omission or delay on the part of the Lender to perfect, enforce, assert or exercise any lien, security interest, right, power or remedy conferred on it in any of the Loan Documents, or any repayment and reborrowing of Loans. To the maximum extent permitted by applicable law, except as otherwise expressly provided in this Agreement or any other action Loan Document to which the Company is a party, the obligations of the Company under this Guaranty shall be absolute, unconditional and irrevocable, and shall be performed strictly in accordance with the terms hereof under any circumstances whatsoever, including:
(i) any modification, amendment, supplement, renewal, extension for any period, increase, decrease, alteration or inaction on the rearrangement of all or any part of the LenderGuaranteed Obligations, or of this Agreement or any other Loan Document executed in connection herewith, or any contract or understanding among the Company, the Subsidiary Borrower, the Administrative Agent and/or the Lenders, or any other Person, pertaining to the Guaranteed Obligations;
(gii) any voluntary adjustment, indulgence, forbearance or involuntary bankruptcy, compromise that might be granted or given by the Lenders to the Company or any other Person liable on the Guaranteed Obligations;
(iii) the insolvency, reorganizationbankruptcy, arrangement, readjustment, assignment for the benefit of creditorsadjustment, composition, receivership, liquidation, marshaling disability, dissolution or lack of assets and liabilities or similar events or proceedings with respect to power of the BorrowerCompany, the Guarantor Subsidiary Borrower or any other guarantor Person at any time liable for the payment of all or part of the Guaranteed Obligations, as applicable, ; or any of their respective property or creditors, or any action taken by any trustee or receiver or by any court in any such proceeding;
(h) any merger or consolidation dissolution of the Company, the Subsidiary Borrower into or with any entity, or any sale, lease or transfer of any or all of the assets of the Company or the Subsidiary Borrower, the Guarantor or any other guarantor changes in the shareholders of the Obligations to Company, the Subsidiary Borrower, or any other person reorganization of the Company or entitythe Subsidiary Borrower;
(iiv) the invalidity, illegality or unenforceability of all or any change in the ownership part of the Borrower Guaranteed Obligations, or any change document or agreement executed in connection with the relationship between Guaranteed Obligations, for any reason whatsoever, including the fact that (A) the Guaranteed Obligations, or any part thereof, exceeds the amount permitted by law, (B) the act of creating the Guaranteed Obligations or any part thereof is ultra xxxxx, (C) the officers or representatives executing the documents or otherwise creating the Guaranteed Obligations acted in excess of their authority, (D) the Guaranteed Obligations or any part thereof violate applicable usury laws, (E) the Company or the Subsidiary Borrower has valid defenses, claims and offsets (whether at law or in equity, by agreement or by statute) which render the Guaranteed Obligations wholly or partially uncollectible from the Company or the Subsidiary Borrower, (F) the Guarantorcreation, performance or repayment of the Guaranteed Obligations (or execution, delivery and performance of any document or instrument representing part of the Guaranteed Obligations or executed in connection with the Guaranteed Obligations, or given to secure the repayment of the Guaranteed Obligations) is illegal, uncollectible, legally impossible or unenforceable, or (G) this Agreement, any other Loan Document, or any other guarantor document or instrument pertaining to the Guaranteed Obligations has been forged or otherwise is irregular or not genuine or authentic;
(v) any full or partial release of the liability of the Company or the Subsidiary Borrower on the Guaranteed Obligations or any part thereof, or any other Person now or hereafter liable, whether directly or indirectly, jointly, severally, or jointly and severally, to pay, perform, guarantee or assure the payment of the Guaranteed Obligations or any part thereof; it being recognized, acknowledged and agreed by the Company that the Company may be required to pay the Guaranteed Obligations in full without assistance or support of any other Person, and the Company has not been induced to enter into this Guaranty on the basis of a contemplation, belief, understanding or agreement that any other Person will be liable to perform the Guaranteed Obligations, or that the Administrative Agent or any Lender will look to any other Person to perform the Guaranteed Obligations;
(vi) the taking or accepting of any other security, collateral or guaranty, or other assurance of payment, for all or any part of the Guaranteed Obligations;
(vii) any release, surrender, exchange, subordination, deterioration, waste, loss or impairment of any collateral, property or security, at any time existing in connection with, or assuring or securing payment of, all or any part of the Guaranteed Obligations;
(viii) the failure of the Administrative Agent, the Lenders or any other Person to exercise diligence or reasonable care in the preservation, protection, enforcement, sale or other handling or treatment of all or any part of such collateral, property or security;
(ix) the fact that any collateral, security or Lien contemplated or intended to be given, created or granted as security for the repayment of the Guaranteed Obligations shall not be properly perfected or created, or shall prove to be unenforceable or subordinate to any other Lien; it being recognized and agreed by the Company that the Company is not entering into this Guaranty in reliance on, or in contemplation of the benefits of, the validity, enforceability, collectibility or value of any of the collateral for the Guaranteed Obligations;
(x) any payment by the Subsidiary Borrower or the Company to the Administrative Agent or any Lender is held to constitute a preference under bankruptcy laws, or for any other reason either the Administrative Agent or any Lender is required to refund such payment or pay such amount to the Subsidiary Borrower or any other Person; or
(xi) any other action taken or omitted to be taken with respect to this Agreement, any other Loan Document, the Guaranteed Obligations, or any termination of any security and collateral therefor, whether or not such relationship;
(j) any release action or discharge by operation of law omission prejudices the Company or increases the likelihood that the Company will be required to pay the Guaranteed Obligations pursuant to the terms hereof; it being the unambiguous and unequivocal intention of the BorrowerCompany that the Company shall be obligated to pay the Guaranteed Obligations when due, the Guarantor or notwithstanding any other guarantor of the Obligations from any obligation or agreement contained in any of the Loan Documents; or
(k) any other occurrence, circumstance, happening or event, action, or omission whatsoever, whether similar contemplated or dissimilar to the foregoing uncontemplated, and whether foreseen or unforeseennot otherwise or particularly described herein, which otherwise might constitute a legal or equitable defense or discharge except for the full and final payment and satisfaction of the liabilities Guaranteed Obligations after the termination of a guarantor the Commitments of all Lenders and the expiration or surety or which otherwise might limit recourse against termination of the Subsidiary Borrower or the Guarantor Letter of Credit.
(b) The Company further agrees that, to the fullest extent permitted by law, as between the Company, on the one hand, and the Lenders and the Administrative Agent, on the other hand, (i) the maturity of the Guaranteed Obligations may be accelerated as provided in Article VII for the purposes of this Guaranty, notwithstanding any stay, injunction or other prohibition preventing such acceleration of the Guaranteed Obligations, and (ii) in the event of any acceleration of the Guaranteed Obligations as provided in Article VII, the Guaranteed Obligations (whether or not due and payable) shall forthwith become due and payable by the Company for the purpose of this Guaranty.
Appears in 1 contract
Samples: Credit Agreement (Kinder Morgan Energy Partners L P)
