Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by, (a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party; (b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof; (c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security); (d) the insolvency of any Credit Party; or (e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 32 contracts
Samples: Credit Agreement (Standard Motor Products Inc), Credit Agreement (Standard Motor Products Inc), Credit Agreement (Huttig Building Products Inc)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is Guarantor, jointly and severally liable forseverally, and hereby absolutely and unconditionally guarantees to Agent and Lenders the Agent, the Lenders, the Holders and their respective successors and assigns, assigns the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other BorrowerObligations. Each Borrower Guarantor agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 Article 9 shall not be discharged until payment and performance, in full, of the Obligations under the Transaction Documents has occurredoccurred and all commitments (if any) to lend hereunder have been terminated, and that its obligations under this Section 12 Article 9 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Transaction Document or any other agreement, document or instrument to which any Borrower Credit Party is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12Article 9) or any other Loan Transaction Document or the waiver or consent by Agent and the Agent, the Lenders or the Holders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency Insolvency of any Credit PartyParty or Subsidiary; or
(ed) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Guarantor shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations obligations guaranteed hereunder.
Appears in 6 contracts
Samples: Financing Agreement (Elevate Credit, Inc.), Financing Agreement (Elevate Credit, Inc.), Financing Agreement (Elevate Credit, Inc.)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the Administrative Agent and the Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to the Administrative Agent and the Lenders by each other BorrowerBorrower (“Guaranteed Obligations”). Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section Article 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section Article 12 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action action, against any Person other than such Borrower, to enforce this Agreement (including this Section Article 12) or any other Loan Document or the waiver or consent by the Administrative Agent and the Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by the Administrative Agent and the Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Loan Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunderGuaranteed Obligations.
Appears in 5 contracts
Samples: Credit Agreement (Rush Enterprises Inc \Tx\), Credit Agreement (Rush Enterprises Inc \Tx\), Credit Agreement (Rush Enterprises Inc \Tx\)
Cross-Guaranty. Each Borrower of You hereby agrees that such Borrower is You are jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Us and Lenders and their Our respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, of all Secured Obligations owed or hereafter owing to Agent and Lenders Us by each the other Borrowerof You. Each Borrower of You agrees that its Your guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its Your obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations Secured Obligations, other than inchoate indemnity obligations, has occurred, and that its Your obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) : • the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is of You are or may become a party;
(b) ; • the absence of any action to enforce this Agreement (including this Section 12Section) or any other Loan Document or the waiver or consent by Agent and Lenders Us with respect to any of the provisions thereof;
(c) ; • the existence, value or condition of, or failure to perfect its Our Lien against, any security for the Secured Obligations or any action, or the absence of any action, by Agent and Lenders Us in respect thereof (including the release of any such security);
(d) ; • the insolvency of any Credit Partyof You; or
(e) or • any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower of You shall be regarded, and shall be in the same position, as principal debtor with respect to the Secured Obligations guaranteed hereunder.
Appears in 5 contracts
Samples: Growth Capital Loan and Security Agreement (Tintri, Inc.), Growth Capital Loan and Security Agreement (Tintri, Inc.), Growth Capital Loan and Security Agreement (Tintri, Inc.)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders each Lender and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations Liabilities owed or hereafter owing to Agent and Lenders each Lender by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 11 shall not be discharged until payment and performance, in full, of the Obligations Liabilities has occurred, and that its obligations under this Section 12 11 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) , the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document Ancillary Agreement or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) ; the absence of any action to enforce this Agreement (including this Section 1211) or any other Loan Document Ancillary Agreement or the waiver or consent by Agent and Lenders each Lender with respect to any of the provisions thereof;
(c) ; the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations Liabilities or any action, or the absence of any action, by Agent and Lenders each Lender in respect thereof (including the release of any such security);
(d) ; the insolvency of any Credit PartyBorrower; or
(e) or any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations Liabilities guaranteed hereunder.
Appears in 5 contracts
Samples: Loan and Security Agreement (ModusLink Global Solutions Inc), Loan and Security Agreement (Cmgi Inc), Loan and Security Agreement (Cmgi Inc)
Cross-Guaranty. Each Co-Borrower hereby agrees that such Co-Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders Lender by each other Co-Borrower. Each Co-Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 16 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 16 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Co-Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 1216) or any other Loan Document Document, or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions hereof or thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyCo-Borrower or any other Person; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Co-Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 5 contracts
Samples: Venture Loan and Security Agreement (IMV Inc.), Venture Loan and Security Agreement (Catasys, Inc.), Venture Loan and Security Agreement (Catasys, Inc.)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 10 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 10 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 1210) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 4 contracts
Samples: Credit Agreement (Penhall International Corp), Credit Agreement (Osullivan Industries Holdings Inc), Credit Agreement (Osullivan Industries Inc)
Cross-Guaranty. Each Borrower Credit Party hereby agrees that such Borrower Credit Party is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other BorrowerCredit Party. Each Borrower Credit Party agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower Credit Party is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Credit Party shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 4 contracts
Samples: Credit Agreement (Thermadyne Holdings Corp /De), Credit Agreement (Thermadyne Holdings Corp /De), Credit Agreement (Thermadyne Holdings Corp /De)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their respective its successors and assigns, assigns the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, of all Obligations owed or hereafter owing to Agent and Lenders Lender by each other Borrower, including that portion of the Revolving Credit Loan attributable to each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 11 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 1211) or any other Loan Document or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions hereof or thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being agreed by each Borrower that its obligations under this Section 11 shall not be discharged until the payment and performance, in full, of the Obligations has occurred. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 4 contracts
Samples: Loan and Security Agreement (Harmony Holdings Inc), Loan and Security Agreement (Method Products Corp /De), Loan and Security Agreement (Diversified Corporate Resources Inc)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally -------------- guarantees to Agent Lender and Lenders and their respective its successors and assigns, assigns the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, of all Obligations owed or hereafter owing to Agent and Lenders Lender by each other Borrower, including that portion of the Revolving Credit Loan attributable to each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 11 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 1211) or any other Loan Document or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions hereof or thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being agreed by each Borrower that its obligations under this Section 11 shall not be discharged until the payment and performance, in full, of the Obligations has occurred. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 3 contracts
Samples: Loan and Security Agreement (Nutrition for Life International Inc), Loan and Security Agreement (Advanced Nutraceuticals Inc/Tx), Loan and Security Agreement (Cd Warehouse Inc)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Administrative Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Administrative Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 14 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 14 shall be absolute and unconditional, irrespective of, and unaffected by,
, (ai) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
; (bii) the absence of any action to enforce this Agreement (including this Section 1214) or any other Loan Document or the waiver or consent by Administrative Agent and Lenders with respect to any of the provisions thereof;
; (ciii) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Administrative Agent and Lenders in respect thereof (including the release of any such security);
; (div) the insolvency of any Credit Loan Party; or
or (ev) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 3 contracts
Samples: Loan, Security and Guaranty Agreement (Quest Resource Holding Corp), Loan, Security and Guaranty Agreement (Quest Resource Holding Corp), Loan and Security Agreement (Ani Pharmaceuticals Inc)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 10 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 10 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 1210) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 3 contracts
Samples: Credit Agreement (Golfsmith International Holdings Inc), Credit Agreement (Golfsmith International Holdings Inc), Credit Agreement (Golfsmith International Holdings Inc)
Cross-Guaranty. (a) Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(ai) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(bii) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(ciii) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(div) the insolvency of any Credit Party; or
(ev) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
(b) Each Borrower expressly represents and acknowledges that it is part of a common enterprise with the other Borrowers and that any financial accommodations by Lenders, or any of them, to any other Borrower hereunder and under the other Loan Documents are and will be of direct and indirect interest, benefit and advantage to all Borrowers.
Appears in 3 contracts
Samples: Credit Agreement (Blount International Inc), Credit Agreement (Blount International Inc), Credit Agreement (Blount International Inc)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. , Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 3 contracts
Samples: Loan Agreement (H&E Equipment Services, Inc.), Loan Agreement (H&E Equipment Services, Inc.), Loan Agreement (H&E Equipment Services, Inc.)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 3 contracts
Samples: Credit Agreement (Verdant Brands Inc), Credit Agreement (Harvard Industries Inc), Credit Agreement (Titan International Inc)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 Article 18 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 Article 18 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any the Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12Article 18) or any other Loan Document or the waiver or consent by Agent and Lenders or any Lender with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders or any Lender in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Partythe Borrower; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 3 contracts
Samples: Credit Agreement (USA Compression Partners, LP), Credit Agreement (USA Compression Partners, LP), Credit Agreement
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 3 contracts
Samples: Credit Agreement (H&E Equipment Services, Inc.), Credit Agreement (H&E Equipment Services, Inc.), Credit Agreement (H&e Finance Corp)
Cross-Guaranty. Each Guarantor (including, for the avoidance of doubt, the US Term Note Borrower hereby agrees that such and the US Last Out Term Note Borrower is with respect to the Obligations of the UK Borrower and each US Term Note Borrower with respect to the Obligations of each other US Term Note Borrower), jointly and severally liable forseverally, and hereby absolutely and unconditionally guarantees to Agent and Lenders the Agent, the Lenders, the Holders and their respective successors and assigns, assigns the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent (and Lenders by for the avoidance of doubt, each Borrower, in its capacity as a Guarantor, so guarantees the payment and performance of the Obligations of each other BorrowerBorrower under each Note). Each Borrower Guarantor agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 ARTICLE 9 shall not be discharged until payment and performance, in full, of the Obligations under the Transaction Documents has occurredoccurred and all commitments (if any) to lend hereunder have been terminated, and that its obligations under this Section 12 ARTICLE 9 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Transaction Document or any other agreement, document or instrument to which any Borrower Credit Party is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12ARTICLE 9) or any other Loan Transaction Document or the waiver or consent by Agent and the Agent, the Lenders or the Holders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency Insolvency of any Credit PartyParty or Subsidiary; or
(ed) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Guarantor shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations obligations guaranteed hereunder.
Appears in 3 contracts
Samples: Financing Agreement (Elevate Credit, Inc.), Financing Agreement (Elevate Credit, Inc.), Financing Agreement (Elevate Credit, Inc.)
Cross-Guaranty. Each Domestic Borrower hereby agrees that such Domestic Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent the Agents and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Secured Obligations owed or hereafter owing to Agent the Agents and Lenders by each other Domestic Borrower and each Foreign Borrower. Each Foreign Borrower hereby agrees that such Foreign Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the Agents and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Secured Obligations owed or hereafter owing to the Agents and Lenders by each other Foreign Borrower; it being understood that the Foreign Borrowers shall have no liability, direct or indirect, for the Secured Obligations of the Domestic Borrowers or the other Domestic Credit Parties hereunder or under any of the Loan Documents. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Secured Obligations (in the case of any Domestic Borrower) or the Secured Obligations of the Foreign Borrowers (in the case of any Foreign Borrower) has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent the Agents and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Secured Obligations or any action, or the absence of any action, by Agent the Agents and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartySotheby Entity; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Domestic Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Secured Obligations guaranteed hereunder. Each Foreign Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Secured Obligations of the other Foreign Borrower guaranteed hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Sothebys), Credit Agreement (Sothebys)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders the Secured Parties and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations and other obligations owed or hereafter owing to Agent and Lenders any Secured Party by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section Article 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section Article 12 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section Article 12) or any other Loan Document or the waiver or consent by the Agent and Lenders or any Lender with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by the Agent and Lenders or any Lender in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyBorrower or any of their respective Affiliates; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Vinebrook Homes Trust, Inc.), Revolving Credit Agreement (Silver Bay Realty Trust Corp.)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any other Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any other Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantorguarantor other than the payment and performance, in full, of the Obligations. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Curative Health Services Inc), Credit Agreement (Curative Health Services Inc)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders the Holders and their respective successors and assigns, assigns the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations obligations owed or hereafter owing to Agent and Lenders the Holders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 ARTICLE 9 shall not be discharged until payment and performance, in full, of the Obligations obligations under the Transaction Documents has occurredoccurred and all commitments (if any) to lend hereunder have been terminated, and that its obligations under this Section 12 ARTICLE 9 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Transaction Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12ARTICLE 9) or any other Loan Transaction Document or the waiver or consent by Agent and Lenders the Holders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence Insolvency of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyBorrower or Subsidiary; or
(ed) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Financing Agreement (Unigene Laboratories Inc), Financing Agreement (Unigene Laboratories Inc)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof, other than in accordance with its terms;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Penn Traffic Co), Credit Agreement (Penn Traffic Co)
Cross-Guaranty. (a) Each U.S. Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders Secured Parties by each other Borrower. Each Canadian Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Secured Parties by each other Canadian Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 13 shall not be discharged until payment and performance, in full, of the Obligations has occurredTermination Date, and that its obligations under this Section 12 13 shall be absolute and unconditional, irrespective of, and unaffected by,
(ai) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(bii) the absence of any action to enforce this Agreement (including this Section 1213) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(ciii) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(div) the insolvency of any Credit Party; or
(ev) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed guarantied hereunder.
(b) Each Borrower expressly represents and acknowledges that it is part of a common enterprise with the other Borrowers and that any financial accommodations by Lenders, or any of them, to any other Borrower hereunder and under the other Loan Documents are and will be of direct and indirect interest, benefit and advantage to all Borrowers.
Appears in 2 contracts
Samples: Credit Agreement (XPO Logistics, Inc.), Revolving Loan Credit Agreement (XPO Logistics, Inc.)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the Administrative Agent and the Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to the Administrative Agent and the Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 Article XI shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 Article XI shall be absolute and unconditional, irrespective of, and unaffected by,;
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12Article XI) or any other Loan Document or the waiver or consent by the Administrative Agent and the Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by the Administrative Agent and the Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Loan Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Checkfree Corp \Ga\), Revolving Credit Agreement (Checkfree Corp \Ga\)
Cross-Guaranty. Each Co-Borrower hereby agrees that such Co-Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Co-Borrower. Each Co-Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 16 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 16 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Co-Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 1216) or any other Loan Document Document, or the waiver or consent by Agent and Lenders with respect to any of the provisions hereof or thereof;
(c) the existence, value or condition of, or failure to perfect its their Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyCo-Borrower or any other Person; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Co-Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Venture Loan and Security Agreement (Environmental Impact Acquisition Corp), Venture Loan and Security Agreement (Stealth BioTherapeutics Corp)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Administrative Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Administrative Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Administrative Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Administrative Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being agreed by each Borrower that its obligations under this Section 12 shall not be discharged until the payment and performance, in full, of the Obligations has occurred. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Bon Ton Stores Inc), Credit Agreement (Bon Ton Stores Inc)
Cross-Guaranty. Each Borrower Qualified ECP Guarantor hereby agrees that such Borrower is jointly and severally liable forabsolutely, unconditionally and hereby absolutely and unconditionally guarantees irrevocably undertakes to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration provide such funds or otherwise) and performance of, all Obligations owed or hereafter owing other support as may be needed from time to Agent and Lenders time by each other Borrower. Each Borrower agrees that Guarantor to honor all of its guaranty obligation hereunder is a continuing guaranty obligations under this Guarantee and Collateral Agreement in respect of payment and performance and not of collectionSwap Obligations (provided, however, that each Qualified ECP Guarantor shall only be liable under this Section 2.9 for the maximum amount of such liability that can be hereby incurred without rendering its obligations under this Section 12 shall not be discharged until payment 2.9, or otherwise under this Guarantee and performanceCollateral Agreement, in full, of the Obligations has occurredvoidable under applicable law relating to fraudulent conveyance or fraudulent transfer, and that its not for any greater amount). The obligations of each Qualified ECP Guarantor under this Section 12 2.9 shall remain in full force and effect until all the Borrower Obligations and the obligations of each Guarantor under the guarantee contained in this Section 2 shall have been satisfied by payment in full (other than contingent or indemnification obligations not then asserted or due), no Letter of Credit (that is not cash collateralized or backstopped to the reasonable satisfaction of the Issuing Lender or purchasing Lender, as applicable, in respect thereof) shall be absolute outstanding and unconditionalthe Commitments shall have been terminated, irrespective ofnotwithstanding that from time to time during the term of the Credit Agreement the Borrower may be free from any Borrower Obligations. Each Qualified ECP Guarantor intends that this Section 2.9 constitute, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 122.9 shall be deemed to constitute, an agreement for the benefit of each other Guarantor for purposes of Section 1a(18)(A)(v)(II) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunderCommodity Exchange Act.
Appears in 2 contracts
Samples: First Lien Credit Agreement (PGA Holdings, Inc.), First Lien Credit Agreement (PGA Holdings, Inc.)
Cross-Guaranty. Each Borrower Credit Party hereby agrees that such Borrower Credit Party is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders Lender by each other BorrowerCredit Party. Each Borrower Credit Party agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 13 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 13 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 1213) or any other Loan Document or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Credit Party shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Credit Agreement (National Automation Services Inc), Credit Agreement (National Automation Services Inc)
Cross-Guaranty. Each Borrower Issuer hereby agrees that such Borrower Issuer is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders each Purchaser and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations obligations owed or hereafter owing to Agent and Lenders each Purchaser by each other BorrowerIssuer (the "Liabilities"). Each Borrower Issuer agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations Liabilities under this Section 12 9 shall not be discharged until payment and performance, in full, of the Obligations Liabilities has occurred, and that its obligations under this Section 12 9 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) , the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document Transaction Agreement or any other agreement, document or instrument to which any Borrower Issuer is or may become a party;
(b) ; the absence of any action to enforce this Agreement (including this Section 129) or any other Loan Document Transaction Agreement or the waiver or consent by Agent and Lenders each Purchaser with respect to any of the provisions thereof;
(c) ; the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations Liabilities or any action, or the absence of any action, by Agent and Lenders each Purchaser in respect thereof (including the release of any such security);
(d) ; the insolvency of any Credit PartyIssuer; or
(e) or any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Issuer shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations Liabilities guaranteed hereunder.
Appears in 2 contracts
Samples: Purchase Agreement (U S Realtel Inc), Purchase Agreement (U S Realtel Inc)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to each Agent and Lenders Lender and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to each Agent and Lenders Lender by each other Borrower; provided, that, notwithstanding any other provision of this Agreement, no Canadian Borrower shall be obligated to guaranty, and no Canadian Borrower shall be deemed to have guaranteed, the Obligations of any US Borrower hereunder; provided further, that, for the avoidance of doubt, the assets of any Canadian Borrower may not and shall not serve at any time, even indirectly, as security for the performance or Obligations of any US Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by either Agent and Lenders or any Lender with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by either Agent and Lenders or any Lender in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Wesco International Inc), Credit Agreement (Wesco International Inc)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment (in cash) and performance and not of collection, that its obligations under this Section 12 13 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 13 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the 13.1.1. The genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the 13.1.2. The absence of any action to enforce this Agreement (including this Section 1213) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the 13.1.3. The existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the 13.1.4. The insolvency of any Credit PartyBorrower; or
(e) any 13.1.5. Any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Loan and Security Agreement (D & K Healthcare Resources Inc), Loan and Security Agreement (D & K Healthcare Resources Inc)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower Xxxxxxxx is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders the Secured Parties and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations and other obligations owed or hereafter owing to Agent and Lenders any Secured Party by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section Article 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section Article 12 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section Article 12) or any other Loan Document or the waiver or consent by the Agent and Lenders or any Lender with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by the Agent and Lenders or any Lender in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyBorrower or any of their respective Affiliates; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Vinebrook Homes Trust, Inc.), Revolving Credit Agreement (Vinebrook Homes Trust, Inc.)
Cross-Guaranty. (a) Each US Borrower hereby agrees that such US Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all US Obligations owed or hereafter owing to Agent and US Lenders by each other US Borrower. Each US Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(ai) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(bii) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent, Canadian Agent and Lenders with respect to any of the provisions thereof;
(ciii) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent, Canadian Agent and Lenders in respect thereof (including the release of any such security);
(div) the insolvency of any Credit Party; or
(ev) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each US Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the US Obligations guaranteed hereunder.
(b) Each Borrower expressly represents and acknowledges that it is part of a common enterprise with the other Borrowers and that any financial accommodations by Lenders, or any of them, to any other Borrower hereunder and under the other Loan Documents are and will be of direct and indirect interest, benefit and advantage to all Borrowers.
Appears in 2 contracts
Samples: Credit Agreement (Blount International Inc), Credit Agreement (Blount International Inc)
Cross-Guaranty. Each Borrower Credit Party hereby agrees that such Borrower Credit Party is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the Administrative Agent, the Collateral Agent and the Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to the Administrative Agent, the Collateral Agent and the Lenders by each other BorrowerCredit Party. Each Borrower Credit Party agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 Article X shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 Article X shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower Credit Party is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12Article X) or any other Loan Document or the waiver or consent by the Administrative Agent, the Collateral Agent and the Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by the Administrative Agent, the Collateral Agent and the Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Credit Party shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Second Lien Credit Agreement (Thermadyne Holdings Corp /De), Second Lien Credit Agreement (Thermadyne Holdings Corp /De)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyBorrower; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Loan Agreement (Asta Funding Inc), Credit Agreement (FCA Acquisition Corp.)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other BorrowerBorrower (“Guaranteed Obligations”). Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action action, against any Person other than such Borrower, to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunderGuaranteed Obligations.
Appears in 2 contracts
Samples: Credit Agreement (Akorn Inc), Credit Agreement (Akorn Inc)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section SECTION 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section SECTION 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section SECTION 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Ddi Corp), Credit Agreement (Ddi Corp)
Cross-Guaranty. Each Borrower of the Borrowers hereby agrees agree that such Borrower is the Borrowers are jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations Liabilities owed or hereafter owing to Agent and Lenders Lender by each other Borrower. Each Borrower agrees of the Borrowers agree that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until indefeasible payment and performance, in full, of the Obligations Liabilities has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) , the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Related Document or any other agreement, document or instrument to which any Borrower Borrowers is or may become a party;
(b) ; the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Related Document or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions thereof;
(c) ; the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations Liabilities or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such security);
(d) ; the insolvency of any Credit PartyBorrowers; or
(e) or any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower of the Borrowers shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations Liabilities guaranteed hereunder.
Appears in 2 contracts
Samples: Loan and Security Agreement, Loan and Security Agreement
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Agents and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent Agents and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent Agents and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent Agents and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Allied Holdings Inc), Loan Agreement (Asta Funding Inc)
Cross-Guaranty. Each Borrower Company hereby agrees that such Borrower Company is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders the Holders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations obligations owed or hereafter owing to Agent and Lenders the Holders by each other BorrowerCompany. Each Borrower Company agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 ARTICLE 9 shall not be discharged until payment and performance, in full, of the Obligations obligations under the Transaction Documents has occurred, and that its obligations under this Section 12 ARTICLE 9 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Transaction Document or any other agreement, document or instrument to which any Borrower Company is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12ARTICLE 9) or any other Loan Transaction Document or the waiver or consent by Agent and Lenders the Holders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence Insolvency of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyCompany or Subsidiary; or
(ed) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Company shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Securities Purchase Agreement (Qsgi Inc.), Securities Purchase Agreement (Qsgi Inc.)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 Article XVIII shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 Article XVIII shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any the Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12Article XVIII) or any other Loan Document or the waiver or consent by Agent and Lenders or any Lender with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders or any Lender in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Partythe Borrower; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Credit Agreement (USA Compression Partners, LP), Credit Agreement
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent the Agents and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent the Agents and the Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 Article XI shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 Article XI shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12Article XI) or any other Loan Document or the waiver or consent by Agent the Agents and the Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent the Agents and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Loan Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Pliant Corp), Credit Agreement (Pliant Corp)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders each Lender and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations Liabilities owed or hereafter owing to Agent and Lenders each Lender by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 8 shall not be discharged until payment and performance, in full, of the Obligations Liabilities has occurred, and that its obligations under this Section 12 8 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) , the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document Ancillary Agreement or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) ; the absence of any action to enforce this Agreement (including this Section 12) 8) or any other Loan Document Ancillary Agreement or the waiver or consent by Agent and Lenders each Lender with respect to any of the provisions thereof;
(c) ; the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations Liabilities or any action, or the absence of any action, by Agent and Lenders each Lender in respect thereof (including the release of any such security);
(d) ; the insolvency of any Credit PartyBorrower; or
(e) or any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations Liabilities guaranteed hereunder.
Appears in 2 contracts
Samples: Loan Agreement (U S Realtel Inc), Loan Agreement (U S Realtel Inc)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent the Lender and Lenders and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders the Lender by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 9 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 9 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 129) or any other Loan Document or the waiver or consent by Agent and Lenders the Lender with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect or delay in perfecting its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders the Lender in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Loan and Security Agreement (Workstream Inc), Loan and Security Agreement (Workstream Inc)
Cross-Guaranty. Each Co-Borrower hereby agrees that such Co-Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the Administrative Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to the Administrative Agent and Lenders by each other Co-Borrower. Each Co-Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 16 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 16 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Co-Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 1216) or any other Loan Document or the waiver or consent by the Administrative Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyCo-Borrower or Subsidiary; or
(ed) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Co-Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Credit Agreement (Ennis, Inc.), Credit Agreement (Ennis, Inc.)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Bank and Lenders and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders Bank by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 Agreement shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 12.10 shall be absolute and unconditional, irrespective of, and unaffected by,
(ai) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(bii) the absence of any action to enforce this Agreement (including this Section 1212.10) or any other Loan Document or the waiver or consent by Agent and Lenders Bank with respect to any of the provisions thereof;
(ciii) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders Bank in respect thereof (including the release of any such security);
(div) the insolvency of any Credit PartyBorrower or any Guarantor; or
(ev) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as the principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Loan and Security Agreement (Financial Engines, Inc.), Loan and Security Agreement (Covad Communications Group Inc)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower Bxxxxxxx is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Administrative Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Administrative Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 14 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 14 shall be absolute and unconditional, irrespective of, and unaffected by,
, (ai) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
; (bii) the absence of any action to enforce this Agreement (including this Section 1214) or any other Loan Document or the waiver or consent by Administrative Agent and Lenders with respect to any of the provisions thereof;
; (ciii) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Administrative Agent and Lenders in respect thereof (including the release of any such security);
; (div) the insolvency of any Credit Loan Party; or
or (ev) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 2 contracts
Samples: Loan, Security and Guaranty Agreement (Quest Resource Holding Corp), Loan, Security and Guaranty Agreement (Quest Resource Holding Corp)
Cross-Guaranty. Each Borrower Debtor hereby agrees that such Borrower Debtor is jointly JOINTLY and severally SEVERALLY liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations Indebtedness owed or hereafter owing to Agent and Lenders Lender by each other Borrowerany Debtor. Each Borrower Debtor agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 2(b) shall not be discharged until indefeasible payment and performance, in full, of the Obligations Indebtedness has occurred, and that its obligations under this Section 12 2(b) shall be absolute and unconditional, irrespective of, and unaffected by,:
(ai) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower Debtor is or may become a party;
(bii) the absence of any action to enforce this Agreement (Agreement, including this Section 12) 2(b), or any other Loan Document or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions thereof;
(ciii) the existence, value or condition of, or failure to perfect its Lien lien against, any security for the Obligations Indebtedness or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such security);
(div) the insolvency of any Credit PartyDebtor; or
(ev) any other action or circumstances circumstance that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Debtor shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations Indebtedness guaranteed hereunder. Notwithstanding any provision herein contained to the contrary, each Debtor’s liability under this Section 2(b), which liability is in addition to amounts for which such Debtor is liable under Section 2(a), shall be limited to an amount not to exceed as of any date of determination the greater of: (i) the net amount of all Loans advanced to any Debtor under this Agreement and then re-loaned or otherwise transferred to, or for the benefit of, such Debtor; and (ii) the amount that could be claimed by Lender from such Debtor under this Section 2(b) without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after taking into account, among other things, each Debtor’s right of contribution and indemnification from each other Debtor. To the extent that any Debtor shall make a payment under this Section 2(b) of all or any of the Indebtedness (other than Loans made to such Debtor for which it is primarily liable) (a “Guarantor Payment”) that, taking into account all other Guarantor Payments then previously or concurrently made by any Debtor, exceeds the amount that such Debtor would otherwise have paid if each Debtor had paid the aggregate Indebtedness satisfied by such Guarantor Payment in the same proportion that such Debtor’s Allocable Amount (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each Debtor as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Indebtedness, such Debtor shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Debtor for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment. As of any date of determination, the “Allocable Amount” of any Debtor shall be equal to the maximum amount of the claim that could then be recovered from such Debtor under this Section 2(b) without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law. This Section 2(b) is intended only LOAN AND SECURITY AGREEMENT – PAGE THERMO CREDIT, LLC – FLINT TELECOM GROUP, INC. to define the relative rights of each Debtor and nothing set forth herein is intended to or shall impair the obligations of each Debtor, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement. Nothing contained in this Section 2(b) shall limit the liability of any Debtor to pay the Loans made directly or indirectly to that Debtor and accrued interest, fees and expenses with respect thereto for which such Debtor shall be primarily liable. The liability of Debtor under this Section 2(b) is in addition to and shall be cumulative with all liabilities of each Debtor to Lender under the Loan Documents to which such Debtor is a party or in respect of any Indebtedness of any other Debtor, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.
Appears in 1 contract
Samples: Loan and Security Agreement (Flint Telecom Group Inc.)
Cross-Guaranty. Each Borrower Loan Party hereby agrees that such Borrower Loan Party is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Administrative Agent, Lenders and Lenders each other Secured Party and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent Administrative Agent, Lenders and Lenders each other Secured Party by each other BorrowerLoan Party. Each Borrower Loan Party agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 Article XIII shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document Document, any Hedge Agreement or any other agreement, document or instrument to which any Borrower Loan Party is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12Article XIII) or any other Loan Document Document, any Hedge Agreement or the waiver or consent by Agent Administrative Agent, Lenders and Lenders each other Secured Party with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent Administrative Agent, Lenders and Lenders each other Secured Party in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Loan Party; or
(e) any other action or circumstances that which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantorguarantor (other than an express written release provided in accordance with the terms hereof), it being agreed by each Loan Party that (absent an express written release provided in accordance with the terms hereof) its obligations under this Article XIII shall not be discharged until the payment and performance, in full, in cash of the Obligations has occurred and all Commitments have been terminated. Each Borrower Loan Party shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is Guarantor, jointly and severally liable forseverally, and hereby absolutely and unconditionally guarantees to Agent and Lenders the Agent, the Lenders, the Holders and their respective successors and assigns, assigns the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other BorrowerObligations. Each Borrower Guarantor agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 Article 9 shall not be discharged until payment and performance, in full, of the Obligations under the Transaction Documents has occurredoccurred and all commitments (if any) to lend hereunder have been terminated, and that its obligations under this Section 12 Article 9 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Transaction Document or any other agreement, document or instrument to which any Borrower Credit Party is or may become a party;; US_142815097
(b) the absence of any action to enforce this Agreement (including this Section 12Article 9) or any other Loan Transaction Document or the waiver or consent by Agent and the Agent, the Lenders or the Holders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency Insolvency of any Credit PartyParty or Subsidiary; or
(ed) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Guarantor shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Administrative Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Administrative Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 Article XIV shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 Article XIV shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12Article XIV) or any other Loan Document or the waiver or consent by Administrative Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Administrative Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Partymember of the Barneys Group; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders Lender by each other Borrower. Lender may bring an action against any Borrower, whether an action is brought against any or all of the other Borrowers. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 SECTION 14 are independent of the obligations of the 66 other Borrowers, that its obligations under this SECTION 14 shall not be discharged until full payment and performance, in full, performance of the Obligations has occurredObligations, and that its obligations under this Section 12 SECTION 14 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) which Borrower or Borrowers requested, received, used, or directly enjoyed the benefit of, the extensions of credit hereunder;
(b) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(bc) the absence of any action to enforce this Agreement (including this Section 12SECTION 14) or any other Loan Document or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions thereof;
(cd) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such security);
(de) the insolvency of any Credit PartyBorrower; or
(ef) any other action or circumstances that which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. , Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Samples: Credit and Security Agreement (Unapix Entertainment Inc)
Cross-Guaranty. Each Borrower Debtor hereby agrees that such Borrower Debtor is jointly JOINTLY and severally SEVERALLY liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations Indebtedness owed or hereafter owing to Agent and Lenders Lender by each other BorrowerDebtor. Each Borrower Debtor agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 2(b) shall not be discharged until indefeasible payment and performance, in full, of the Obligations Indebtedness has occurred, and that its obligations under this Section 12 2(b) shall be absolute and unconditional, irrespective of, and unaffected by,:
(ai) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower Debtor is or may become a party;
(bii) the absence of any action to enforce this Agreement (Agreement, including this Section 12) 2(b), or any other Loan Document or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions thereof;; THERMO CREDIT, LLC - UNITED ESYSTEMS, INC.
(ciii) the existence, value or condition of, or failure to perfect its Lien lien against, any security for the Obligations Indebtedness or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such security);
(div) the insolvency of any Credit PartyObligor; or
(ev) any other action or circumstances circumstance that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Debtor shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations Indebtedness guaranteed hereunder. Notwithstanding any provision herein contained to the contrary, each Debtor’s liability under this Section 2(b), which liability is in addition to amounts for which such Debtor is liable under Section 2(a), shall be limited to an amount not to exceed as of any date of determination the greater of: (i) the net amount of all Loans advanced to any Debtor under this Agreement and then re-loaned or otherwise transferred to, or for the benefit of, such Debtor; and (ii) the amount that could be claimed by Lender from any Debtor under this Section 2(b) without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after taking into account, among other things, each Debtor’s right of contribution and indemnification from each other Debtor. To the extent that any Debtor shall make a payment under this Section 2(b) of all or any of the Indebtedness (other than Loans made to such Debtor for which it is primarily liable) (a “Guarantor Payment”) that, taking into account all other Guarantor Payments then previously or concurrently made by any Debtor, exceeds the amount that such Debtor would otherwise have paid if each Debtor had paid the aggregate Indebtedness satisfied by such Guarantor Payment in the same proportion that such Debtor’s Allocable Amount (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of Debtor as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Indebtedness, such Debtor shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Debtor for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment. As of any date of determination, the “Allocable Amount” of any Debtor shall be equal to the maximum amount of the claim that could then be recovered from such Debtor under this Section 2(b) without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law. This Section 2(b) is intended only to define the relative rights of any Debtor and nothing set forth herein is intended to or shall impair the obligations of such Debtor, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement. Nothing contained in this Section 2(b) shall limit the liability of any Debtor to pay the Loans made directly or indirectly to that such Debtor and accrued interest, fees and expenses with respect thereto for which such Debtor shall be primarily liable. The liability of any Debtor under this Section 2(b) is in addition to and shall be cumulative with all liabilities of each Debtor to Lender under the Loan Documents to which such Debtor is a party or in respect of any Indebtedness of any other Debtor, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.
Appears in 1 contract
Cross-Guaranty. Each Borrower Borrowers hereby agrees agree that such Borrower is Borrowers are jointly and severally liable for, and hereby absolutely and unconditionally guarantees guarantee to Agent Agent, Revolving Credit Agent, L/C Issuer and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees Borrowers agree that its their guaranty obligation obligations hereunder is a are continuing guaranty guaranties of payment and performance and not of collection, that its obligations under this Section SECTION 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section SECTION 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is Borrowers are or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section SECTION 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the Administrative Agent and the Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to the Administrative Agent and the Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 ARTICLE X shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 ARTICLE X shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12ARTICLE X) or any other Loan Document or the waiver or consent by the Administrative Agent and the Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by the Administrative Agent and the Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Loan Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Samples: Credit Agreement (Tweeter Home Entertainment Group Inc)
Cross-Guaranty. (a) Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 9.23 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 9.23 shall be absolute and unconditional, irrespective of, and unaffected by,
by (ai) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
; (bii) the absence of any action to enforce this Agreement (including this Section 129.23) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
; (ciii) the existence, value or condition of, or failure to perfect its Lien lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such security);
; (div) the insolvency of any Credit PartyBorrower; or
or (ev) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. .
(b) Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
(c) Each Borrower expressly waives all rights it may have now or in the future under any statute, or at common law, or at law or in equity, or otherwise, to compel Agent or Lenders to marshal assets or to proceed in respect of the Obligations guaranteed hereunder against any other Credit Party, any other party or against any security for the payment and performance of the Obligations before proceeding against, or as a condition to proceeding against, such Borrower. It is agreed among each Borrower, Agent and Lenders that the foregoing waivers are of the essence of the transaction contemplated by this Agreement and the other Loan Documents and that, but for the provisions of this Section 12 and such waivers, Agent and Lenders would decline to enter into this Agreement.
(d) Each Borrower agrees that the provisions of this Section 9.23 are for the benefit of Agent and Lenders and their respective successors, transferees, endorsees and assigns, and nothing herein contained shall impair, as between any other Borrower and Lender, the obligations of such other Borrower under the Loan Documents.
(e) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, and except as set forth in this Section 9.23, each Borrower hereby expressly and irrevocably subordinates to payment of the Obligations any and all rights at law or in equity to subrogation, reimbursement,exoneration, contribution, indemnification or set off and any and all defenses available to a surety, guarantor or accommodation co-obligor until the Obligations are indefeasibly paid in full in cash. Each Borrower acknowledges and agrees that this subordination is intended to benefit Lender and shall not limit or otherwise affect such Borrower’s liability hereunder or the enforceability of this Section 9.23, and that Lender and its successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 9.23.
(f) If Lender may, under applicable law, proceed to realize its benefits under any of the Loan Documents giving Lender a lien upon any Collateral, whether owned by any Borrower or by any other Person, either by judicial foreclosure or by non-judicial sale or enforcement, Lender may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights and remedies under this Section 9.23. If, in the exercise of any of its rights and remedies, Lender shall forfeit any of its rights or remedies, including its right to enter a deficiency judgment against any Borrower or any other Person, whether because of any applicable laws pertaining to “election of remedies” or the like, each Borrower hereby consents to such action by Lender and waives any claim based upon such action, even if such action by Lender shall result in a full or partial loss of any rights of subrogation that each Borrower might otherwise have had but for such action by Lender. Any election of remedies that results in the denial or impairment of the right of Lender to seek a deficiency judgment against any Borrower shall not impair any other Borrower’s obligation to pay the full amount of the Obligations. In the event Lender shall bid at any foreclosure or trustee’s sale or at any private sale permitted by law or the Loan Documents, Lender may bid all or less than the amount of the Obligations and the amount of such bid need not be paid by Lender but shall be credited against the Obligations. The amount of the successful bid at any such sale, whether Lender or any other party is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 9.23, notwithstanding that any present or future law or court decision or ruling may have the effect of reducing the amount of any deficiency claim to which Lender might otherwise be entitled but for such bidding at any such sale.
(g) Notwithstanding any provision herein contained to the contrary, each Borrower’s liability under this Section 9.23 (which liability is in any event in addition to amounts for which such Borrower is primarily liable under Section 2) shall be limited to an amount not to exceed as of any date of determination the greater of:
(i) the net amount of all Loans advanced to any other Borrower under this Agreement and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower; and
(ii) the amount that could be claimed by Agent and Lenders from such Borrower under this Section 9.23 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after taking into account, among other things, such Borrower’s right of contribution and indemnification from each other Borrower under Section 9.23.
(h) To the extent that any Borrower shall make a payment under this Section 9.23 of all or any of the Obligations (other than Loans made to that Borrower for which it is primarily liable) (a “Guarantor Payment”) that, taking into account all other Guarantor Payments then previously or concurrently made by any other Borrower, exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the aggregate Obligations satisfied by such Guarantor Payment in the same proportion that such Borrower’s “Allocable Amount” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Borrowers as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Obligations and termination of the Commitments, such Borrower shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Borrower for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
(i) As of any date of determination, the “Allocable Amount” of any Borrower shall be equal to the maximum amount of the claim that could then be recovered from such Borrower under this Section 12 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law.
(j) This Section 9.23 is intended only to define the relative rights of Borrowers and nothing set forth in this Section 9.23 is intended to or shall impair the obligations of Borrowers, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement, including Section 9.23. Nothing contained in this Section 9.23 shall limit the liability of any Borrower to pay the Loans made directly or indirectly to that Borrower and accrued interest, fees and expenses with respect thereto for which such Borrower shall be primarily liable.
(k) The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of the Borrower to which such contribution and indemnification is owing.
(l) The rights of the indemnifying Borrowers against other Credit Parties under this Section 9.23 shall be exercisable upon the full and indefeasible payment of the Obligations and the termination of the commitments of Lender hereunder.”
(m) The liability of Borrowers under this Section 9.23 is in addition to and shall be cumulative with all liabilities of each Borrower to Lender under this Agreement and the other Loan Documents to which such Borrower is a party or in respect of any Obligations or obligation of the other Borrower, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.”
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their its respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders Lender by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 Article XII shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 Article XII shall be absolute and unconditional, irrespective of, and unaffected by,
(a) 1. the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) 2. the absence of any action to enforce this Agreement (including this Section 12Article XII) or any other Loan Document or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions thereof;
(c) 3. the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such security);
(d) 4. the insolvency of any Credit Party; or
(e) 5. any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower Obligor hereby agrees that such Borrower Obligor is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders Lender by each other BorrowerObligor. Each Borrower Obligor agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section SECTION 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document Related Agreement or any other agreement, document or instrument to which any Borrower Obligor is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section SECTION 12) or any other Loan Document Related Agreement or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyObligor; or
(e) any other action or circumstances that which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being agreed by each Obligor that its obligations under this SECTION 12 shall not be discharged until the payment and performance, in full, of the Obligations has occurred. Each Borrower Obligor shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their respective its successors and assigns, assigns the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, of all Obligations owed or hereafter owing to Agent and Lenders Lender by each other Borrower, including that portion of any Loan attributable to each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 15 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any either Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 1215) or any other Loan Document or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions hereof or thereof;
(c) the existence, value or condition of, or failure to perfect its Lien lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Partyother Borrower; or
(e) any other action or circumstances that which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being agreed by each Borrower that its obligations under this Section 15 shall not be discharged until the payment and performance, in full, of the Obligations has occurred. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Blue Star Foods Corp.)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Administrative Agent and Lenders each Lender and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations Indebtedness owed or hereafter owing to Administrative Agent and Lenders each Lender by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 11 shall not be discharged until payment and performance, in full, of the Obligations Indebtedness has occurred, and that its obligations under this Section 12 11 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) , the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document Ancillary Agreement or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) ; the absence of any action to enforce this Agreement (including this Section 1211) or any other Loan Document Ancillary Agreement or the waiver or consent by Administrative Agent and Lenders each Lender with respect to any of the provisions thereof;
(c) ; the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations Indebtedness or any action, or the absence of any action, by Administrative Agent and Lenders each Lender in respect thereof (including the release of any such security);
(d) ; the insolvency of any Credit PartyBorrower; or
(e) or any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations Indebtedness guaranteed hereunder.
Appears in 1 contract
Samples: Revolving Credit Agreement (Information Resources Inc)
Cross-Guaranty. Each Borrower Credit Party hereby agrees that such Borrower Credit Party is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent the Purchaser and Lenders and their its respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations Indebtedness and other obligations owed or hereafter owing to Agent and Lenders the Purchaser by each the other BorrowerCredit Parties. Each Borrower Credit Party agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 8 shall not be discharged until payment and performance, in full, of the Obligations aforementioned Indebtedness and obligations has occurred, and that its obligations under this Section 12 8 shall be absolute and unconditional, irrespective of, and unaffected by,:
(ai) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Transaction Document or any other agreement, document or instrument to which any Borrower Credit Party is or may become a party;
(bii) the absence of any action to enforce this Agreement (including this Section 12) 8) or any other Loan Transaction Document or the waiver or consent by Agent and Lenders the Purchaser with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(diii) the insolvency of any Credit Party; or
(eiv) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Credit Party shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations aforementioned Indebtedness and obligations guaranteed hereunder.
Appears in 1 contract
Samples: Senior Note Purchase Agreement (As Seen on TV, Inc.)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is Guarantor, jointly and severally liable forseverally, and hereby absolutely and unconditionally guarantees to Agent the Lender and Lenders and their respective its successors and assigns, assigns the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other BorrowerObligations. Each Borrower Guarantor agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 ARTICLE 9 shall not be discharged until payment and performance, in full, of the Obligations (other than Unasserted Contingent Obligations) under the Transaction Documents has occurredoccurred and all commitments (if any) to lend hereunder have been terminated, and that its obligations under this Section 12 ARTICLE 9 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Transaction Document or any other agreement, document or instrument to which any Borrower Credit Party is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12ARTICLE 9) or any other Loan Transaction Document or the waiver or consent by Agent and Lenders the Holders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency Insolvency of any Credit PartyParty or Subsidiary; or
(ed) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Guarantor shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations obligations guaranteed hereunder.
Appears in 1 contract
Samples: Financing Agreement (Midwest Energy Emissions Corp.)
Cross-Guaranty. (a) Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the Administrative Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to the Administrative Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 9.21 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 9.21 shall be absolute and unconditional, irrespective of, and unaffected by,:
(ai) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(bii) the absence of any action to enforce this Agreement (including this Section 129.21) or any other Loan Document or the waiver or consent by the Administrative Agent and Lenders with respect to any of the provisions thereof;
(ciii) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by the Administrative Agent and Lenders in respect thereof (including the release of any such security);
(div) the insolvency of any Credit Loan Party; or
(ev) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. .
(vi) Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
(b) Each Borrower expressly waives all rights it may have now or in the future under any statute, or at common law, or at law or in equity, or otherwise, to compel the Administrative Agent or Lenders to mxxxxxxx assets or to proceed in respect of the Obligations guaranteed hereunder against any other Loan Party, any other party or against any security for the payment and performance of the Obligations before proceeding against, or as a condition to proceeding against, such Borrower. It is agreed among each Borrower, the Administrative Agent and Lenders that the foregoing waivers are of the essence of the transaction contemplated by this Agreement and the other Loan Documents and that, but for the provisions of this Section 9.21 and such waivers, the Administrative Agent and Lenders would decline to enter into this Agreement.
(c) Each Borrower agrees that the provisions of this Section 9.21 are for the benefit of the Administrative Agent and Lenders and their respective successors, transferees, endorsees and assigns, and nothing herein contained shall impair, as between any other Borrower and Administrative Agent or Lenders, the obligations of such other Borrower under the Loan Documents.
(d) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, and except as set forth in Section 9.21(g), each Borrower hereby expressly and irrevocably subordinates to payment of the Obligations any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all defenses available to a surety, guarantor or accommodation co-obligor until the Obligations are indefeasibly paid in full in cash. Each Borrower acknowledges and agrees that this subordination is intended to benefit Administrative Agent and Lenders and shall not limit or otherwise affect such Borrower’s liability hereunder or the enforceability of this Section 9.21, and that the Administrative Agent, Lenders and their respective successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 9.21(d).
(e) If the Administrative Agent or any Lender may, under applicable law, proceed to realize its benefits under any of the Loan Documents giving Administrative Agent or such Lender a Lien upon any Collateral, whether owned by any Borrower or by any other Person, either by judicial foreclosure or by non judicial sale or enforcement, Administrative Agent or any Lender may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights and remedies under this Section 9.21. If, in the exercise of any of its rights and remedies, Administrative Agent or any Lender shall forfeit any of its rights or remedies, including its right to enter a deficiency judgment against any Borrower or any other Person, whether because of any applicable laws pertaining to “election of remedies” or the like, each Borrower hereby consents to such action by Administrative Agent or such Lender and waives any claim based upon such action, even if such action by Administrative Agent or such Lender shall result in a full or partial loss of any rights of subrogation that each Borrower might otherwise have had but for such action by Administrative Agent or such Lender. Any election of remedies that results in the denial or impairment of the right of Administrative Agent or any Lender to seek a deficiency judgment against any Borrower shall not impair any other Borrower’s obligation to pay the full amount of the Obligations. In the event Administrative Agent or any Lender shall bid at any foreclosure or trustee’s sale or at any private sale permitted by law or the Loan Documents, Administrative Agent or such Lender may bid all or less than the amount of the Obligations and the amount of such bid need not be paid by Administrative Agent or such Lender but shall be credited against the Obligations. The amount of the successful bid at any such sale, whether Administrative Agent, Lender or any other party is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 9.21, notwithstanding that any present or future law or court decision or ruling may have the effect of reducing the amount of any deficiency claim to which Administrative Agent or any Lender might otherwise be entitled but for such bidding at any such sale.
(f) Notwithstanding any provision herein contained to the contrary, each Borrower’s liability under this Section 9.21 (which liability is in any event in addition to amounts for which such Borrower is primarily liable under Article II) shall be limited to an amount not to exceed as of any date of determination the greater of:
(i) the net amount of all Loans advanced to any other Borrower under this Agreement and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower; and
(ii) the amount that could be claimed by the Administrative Agent and Lenders from such Borrower under this Section 9.21 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after taking into account, among other things, such Borrower’s right of contribution and indemnification from each other Borrower under Section 9.21(g).
(g) To the extent that any Borrower shall make a payment under this Section 9.21 of all or any of the Obligations (other than Loans made to that Borrower for which it is primarily liable) (a “Guarantor Payment”) that, taking into account all other Guarantor Payments then previously or concurrently made by any other Borrower, exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the aggregate Obligations satisfied by such Guarantor Payment in the same proportion that such Borrower’s “Allocable Amount” (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Borrowers as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Obligations and termination of the Commitments, such Borrower shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Borrower for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
(i) As of any date of determination, the “Allocable Amount” of any Borrower shall be equal to the maximum amount of the claim that could then be recovered from such Borrower under this Section 9.21 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law.
(ii) This Section 9.21(g) is intended only to define the relative rights of the Borrowers and nothing set forth in this Section 9.21(g) is intended to or shall impair the obligations of the Borrowers, jointly and severally, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement, including Section 9.21(a). Nothing contained in this Section 9.21(g) shall limit the liability of any Borrower to pay the Loans made directly or indirectly to that Borrower and accrued interest, Fees and expenses with respect thereto for which such Borrower shall be primarily liable.
(iii) The parties hereto acknowledge that the rights of contribution and indemnification hereunder shall constitute assets of any Borrower to which such contribution and indemnification is owing.
(iv) The rights of the indemnifying the Borrowers against other Loan Parties under this Section 9.21(g) shall be exercisable upon the full and indefeasible payment of the Obligations and the termination of the Commitments.
(h) The liability of the Borrowers under this Section 9.21 is in addition to and shall be cumulative with all liabilities of each Borrower to Administrative Agent and Lenders under this Agreement and the other Loan Documents to which such Borrower is a party or in respect of any Obligations or obligation of the other Borrower, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.
Appears in 1 contract
Samples: Credit Agreement (Centerplate, Inc.)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the Administrative Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Administrative Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 Article XIV shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 Article XIV shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12Article XIV) or any other Loan Document or the waiver or consent by Administrative Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyBorrower or Guarantor; oror [Summit Healthcare] 108
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower -------------- is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Agents and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent Agents and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section ------- 12 shall be absolute and unconditional, irrespective of, and unaffected by,, --
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or ----------- consent by Agent Agents and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent Agents and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being agreed by each Borrower that its obligations under this Section 12 ---------- shall not be discharged until the payment and performance, in full, of the Obligations has occurred. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 10 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 10 shall be absolute and unconditional, irrespective of, and unaffected by,
: (a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
; (b) the absence of any action to enforce this Agreement (including this Section 1210) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
; (c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
; (d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Administrative Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Administrative Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 11 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 11 shall be absolute and unconditional, irrespective of, and unaffected by,
: (a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
; (b) the absence of any action to enforce this Agreement (including this Section 1211) or any other Loan Document or the waiver or consent by Administrative Agent and Lenders with respect to any of the provisions thereof;
; (c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Administrative Agent and Lenders in respect thereof (including the release of any such security);
; (d) the insolvency of any Credit Loan Party; or
or (e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantorParent. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is -------------- jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Samples: Credit Agreement (American Eco Corp)
Cross-Guaranty. Each Borrower hereby acknowledges and agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders Lender by each the other BorrowerBorrowers. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 11 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 1211) or any other Loan Document or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien lien or security interest against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including including, without limitation, the release of any such security);
(d) the insolvency of any Credit Party; or
(ed) any other action or circumstances that which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being agreed by each Borrower that its obligations under this Section 11 shall not be discharged until the payment and performance, in full, of the Obligations has occurred. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.. Each Borrower expressly waives all rights it may have now or in the future under any statute, or at common law, or at law or in equity, or otherwise, to compel Lender to proceed in respect of the Obligations guaranteed
Appears in 1 contract
Samples: Loan and Security Agreement (Centrum Industries Inc)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Agent, for the benefit of the Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 15 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 15 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Financing Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Financing Agreement (including this Section 1215) or any other Loan Document or the waiver or consent by the Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyBorrower; or
(e) any other action or circumstances that which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower Loan Party (other than the Borrowers and the Canadian Loan Party) (each, a "Guarantor" and collectively, the "Guarantors") hereby agrees that such Borrower Guarantor is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations Liabilities owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower Guarantor agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 34 shall not be discharged until payment and performance, in full, of the Obligations Liabilities has occurred, and that its obligations under this Section 12 34 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) a. the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document Other Agreement or any other agreement, document or instrument to which any Borrower Loan Party is or may become a party;
(b) b. the absence of any action to enforce this Agreement (including this Section 1234) or any other Loan Document Other Agreement or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) c. the existence, value or condition of, or failure to perfect its Lien lien against, any security for the Obligations Liabilities or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) d. the insolvency of any Credit Loan Party; or
(e) e. any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Guarantor shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations Liabilities guaranteed hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (Poindexter J B & Co Inc)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders the Holders and their respective successors and assigns, assigns the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations obligations owed or hereafter owing to Agent and Lenders the Holders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 ARTICLE 9 shall not be discharged until payment and performance, in full, of the Obligations obligations under the Transaction Documents has occurred, and that its obligations under this Section 12 ARTICLE 9 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Transaction Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12ARTICLE 9) or any other Loan Transaction Document or the waiver or consent by Agent and Lenders the Holders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence Insolvency of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyBorrower or Subsidiary; or
(ed) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations obligations guaranteed hereunder.
Appears in 1 contract
Samples: Financing Agreement (Jamba, Inc.)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their its respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders Lender by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Samples: Loan Agreement (Asta Funding Inc)
Cross-Guaranty. Each Borrower Debtor hereby agrees that such Borrower Debtor is jointly and severally JOINTLY SEVERALLY AND IN SOLIDO liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations Indebtedness owed or hereafter owing to Agent and Lenders Lender by each other Borrowerany Debtor. Each Borrower Debtor agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 2(b) shall not be discharged until indefeasible payment and performance, performance in full, full of the Obligations Indebtedness has occurred, and that its obligations under this Section 12 2(b) shall be absolute and unconditional, irrespective of, of and unaffected by,:
(ai) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower Debtor is or may become a party;
(bii) the absence of any action to enforce this Agreement (Agreement, including this Section 12) 2(b), or any other Loan Document or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions thereof;
(ciii) the existence, value or condition of, or failure to perfect its Lien lien against, any security or Collateral for the Obligations Indebtedness or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such securitysecurity or Collateral);
(div) the insolvency of any Credit PartyObligor; or
(ev) any other action or circumstances circumstance that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Samples: Loan Agreement (Onstream Media CORP)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the Administrative Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Administrative Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 Article 14 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 Article 14 shall be absolute and unconditional, irrespective of, and unaffected by,: LOAN AGREEMENT – Page 110[Heritage Wxxxx]
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12Article 14) or any other Loan Document or the waiver or consent by Administrative Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyBorrower or Guarantor; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. .
(f) Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Samples: Loan Agreement (Cornerstone Core Properties REIT, Inc.)
Cross-Guaranty. (a) Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their respective its successors and assigns, assigns the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders Lender by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 9.23 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 9.23 shall be absolute and unconditional, irrespective of, and unaffected by,
by (ai) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
; (bii) the absence of any action to enforce this Agreement (including this Section 129.23) or any other Loan Document or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions thereof;
; (ciii) the existence, value or condition of, or failure to perfect its Lien lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such security);
; (div) the insolvency of any Credit PartyBorrower; or
or (ev) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. .
(b) Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
(c) Each Borrower expressly waives all rights it may have now or in the future under any statute, or at common law, or at law or in equity, or otherwise, to compel Lender to marshal assets or to proceed in respect of the Obligations guaranteed hereunder against any other Borrower, any other party or against any security for the payment and performance of the Obligations before proceeding against, or as a condition to proceeding against, such Borrower. It is agreed among each Borrower and Lender that the foregoing waivers are of the essence of the transaction contemplated by this Agreement and the other Loan Documents and that, but for the provisions of this Section 9.23 and such waivers, Lender would decline to enter into this Agreement.
(d) Each Borrower agrees that the provisions of this Section 9.23 are for the benefit of Lender and its successors, transferees, endorsees and assigns, and nothing herein contained shall impair, as between any other Borrower and Lender, the obligations of such other Borrower under the Loan Documents.
(e) Notwithstanding anything to the contrary in this Agreement or in any other Loan Document, and except as set forth in this Section 9.23, each Borrower hereby expressly and irrevocably subordinates to payment of the Obligations any and all rights at law or in equity to subrogation, reimbursement, exoneration, contribution, indemnification or set off and any and all defenses available to a surety, guarantor or accommodation co-obligor until the Obligations are indefeasibly paid in full in cash. Each Borrower acknowledges and agrees that this subordination is intended to benefit Lender and shall not limit or otherwise affect such Borrower's liability hereunder or the enforceability of this Section 9.23, and that Lender and its successors and assigns are intended third party beneficiaries of the waivers and agreements set forth in this Section 9.23.
(f) If Lender may, under applicable law, proceed to realize its benefits under any of the Loan Documents giving Lender a lien upon any Collateral, whether owned by any Borrower or by any other Person, either by judicial foreclosure or by non-judicial sale or enforcement, Lender may, at its sole option, determine which of its remedies or rights it may pursue without affecting any of its rights and remedies under this Section 9.23. If, in the exercise of any of its rights and remedies, Lender shall forfeit any of its rights or remedies, including its right to enter a deficiency judgment against any Borrower or any other Person, whether because of any applicable laws pertaining to "election of remedies" or the like, each Borrower hereby consents to such action by Lender and waives any claim based upon such action, even if such action by Lender shall result in a full or partial loss of any rights of subrogation that each Borrower might otherwise have had but for such action by Lender. Any election of remedies that results in the denial or impairment of the right of Lender to seek a deficiency judgment against any Borrower shall not impair any other Borrower's obligation to pay the full amount of the Obligations. In the event Lender shall bid at any foreclosure or trustee's sale or at any private sale permitted by law or the Loan Documents, Lender may bid all or less than the amount of the Obligations and the amount of such bid need not be paid by Lender but shall be credited against the Obligations. The amount of the successful bid at any such sale, whether Lender or any other party is the successful bidder, shall be conclusively deemed to be the fair market value of the Collateral and the difference between such bid amount and the remaining balance of the Obligations shall be conclusively deemed to be the amount of the Obligations guaranteed under this Section 9.23, notwithstanding that any present or future law or court decision or ruling may have the effect of reducing the amount of any deficiency claim to which Lender might otherwise be entitled but for such bidding at any such sale.
(g) Notwithstanding any provision herein contained to the contrary, each Borrower's liability under this Section 9.23 (which liability is in any event in addition to amounts for which such Borrower is primarily liable under Section 2) shall be limited to an amount not to exceed as of any date of determination the greater of:
(i) the net amount of all Loans advanced to any other Borrower under this Agreement and then re-loaned or otherwise transferred to, or for the benefit of, such Borrower; and
(ii) the amount that could be claimed by Lender from such Borrower under this Section 9.23 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law after taking into account, among other things, such Borrower's right of contribution and indemnification from each other Borrower under Section 9.
(h) To the extent that any Borrower shall make a payment under this Section 9.23 of all or any of the Obligations (other than Loans made to that Borrower for which it is primarily liable) (a "Guarantor Payment") that, taking into account all other Guarantor Payments then previously or concurrently made by any other Borrower, exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the aggregate Obligations satisfied by such Guarantor Payment in the same proportion that such Borrower's Allocable Amount (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of the Borrowers as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Obligations and termination of the Commitments, such Borrower shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Borrower for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment.
(i) As of any date of determination, the "Allocable Amount" of any Borrower shall be equal to the maximum amount of the claim that could then be recovered from such Borrower under this Section 9.23 without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform
Appears in 1 contract
Cross-Guaranty. a. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Agent, Revolving Credit Agent, and Lenders and their respective permitted successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, of all Obligations owed or hereafter owing to Agent, Revolving Credit Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, full of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(ai) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Operative Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(bii) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Operative Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(ciii) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent, Revolving Credit Agent and Lenders in respect thereof (including the release of any such security);
(div) the insolvency of any Credit Party; or
(ev) any other action or circumstances that which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower Loan Party hereby agrees that such Borrower Loan Party is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their its respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders Lender by each other BorrowerLoan Party. Each Borrower Loan Party agrees that its guaranty obligation Guaranteed Obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 Article X shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 Article X shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower Loan Party is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12Article X) or any other Loan Document or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Loan Party, Holding Company or Ensign; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Loan Party shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower Credit Party hereby agrees that such Borrower Credit Party is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Agent, the L/C Issuer and Lenders and their respective successors and assignsLenders, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent Agent, the L/C Issuer and Lenders by each other BorrowerCredit Party. Each Borrower Credit Party agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 10 shall not be discharged until payment and performance, in full, of the Obligations (other than contingent indemnification Obligations for which no unsatisfied claim giving rise thereto has been asserted) has occurred, and that its obligations under this Section 12 10 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower Credit Party is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 1210) or any other Loan Document or the waiver or consent by Agent Agent, the L/C Issuer and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent Agent, the L/C Issuer and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Credit Party shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Samples: Credit Agreement (Green Plains Inc.)
Cross-Guaranty. Section 9.1 Cross-Guaranty. Each Guarantor (including, for the avoidance of doubt, the US Term Note Borrower hereby agrees that such and the US Last Out Term Note Borrower is with respect to the Obligations of the UK Borrower and each US Term Note Borrower with respect to the Obligations of each other US Term Note Borrower), jointly and severally liable forseverally, and hereby absolutely and unconditionally guarantees to Agent and Lenders the Agent, the Lenders, the Holders and their respective successors and assigns, assigns the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent (and Lenders by for the avoidance of doubt, each Borrower, in its capacity as a Guarantor, so guarantees the payment and performance of the Obligations of each other BorrowerBorrower under each Note). Each Borrower Guarantor agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 ARTICLE 9 shall not be discharged until payment and performance, in full, of the Obligations under the Transaction Documents has occurredoccurred and all commitments (if any) to lend hereunder have been terminated, and that its obligations under this Section 12 ARTICLE 9 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Transaction Document or any other agreement, document or instrument to which any Borrower Credit Party is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12ARTICLE 9) or any other Loan Transaction Document or the waiver or consent by Agent and the Agent, the Lenders or the Holders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency Insolvency of any Credit PartyParty or Subsidiary; or
(ed) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Guarantor shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section SECTION 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section SECTION 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section SECTION 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.. Credit Agreement (Omni)
Appears in 1 contract
Cross-Guaranty. Each Co-Borrower hereby agrees that such Co-Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the Administrative Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Secured Obligations owed or hereafter owing to the Administrative Agent and Lenders by each other Co-Borrower. Each Co-Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 Article XI shall not be discharged until payment and performance, in full, of the Secured Obligations has occurred, and that its obligations under this Section 12 Article XI shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Co-Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12Article XI) or any other Loan Document or the waiver or consent by the Administrative Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence insolvency of any action, by Agent and Lenders in respect thereof (including the release of any such security)Co-Borrower or Subsidiary;
(d) the insolvency release of any Credit PartyCo-Borrower from any liability or obligation under this Agreement or any other Loan Document; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Co-Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Secured Obligations guaranteed hereunder.
Appears in 1 contract
Samples: Credit Agreement (Ennis, Inc.)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations (other than contingent indemnification obligations not yet due and payable) has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyBorrower; or
(e) any other action or circumstances (other than payment in full in cash of the Obligations and termination of the commitments hereunder) that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 13 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 13 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce any provision of this Agreement (including this Section 1213) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyBorrower;
(e) the occurrence of any of the events described in Section 8.1(g); or
(ef) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Samples: Debtor in Possession Credit Agreement (Mirant Corp)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower Xxxxxxxx is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 Article XI shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 Article XI shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12Article XI) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Samples: Debt Agreement
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is Guarantor, jointly and severally liable forseverally, and hereby absolutely and unconditionally guarantees to Agent and Lenders the Holders and their respective successors and assigns, assigns the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other BorrowerObligations. Each Borrower Guarantor agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 ARTICLE 9 shall not be discharged until payment and performance, in full, of the Obligations obligations under the Transaction Documents has occurredoccurred and all commitments (if any) to lend hereunder have been terminated, and that its obligations under this Section 12 ARTICLE 9 shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Transaction Document or any other agreement, document or instrument to which any Borrower Credit Party is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12ARTICLE 9) or any other Loan Transaction Document or the waiver or consent by Agent and Lenders the Holders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency Insolvency of any Credit PartyParty or Subsidiary; or
(ed) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Guarantor shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations obligations guaranteed hereunder.
Appears in 1 contract
Samples: Financing Agreement (Wave2Wave Communications, Inc.)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the Agent and Lenders each Lender and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations Liabilities owed or hereafter owing to Agent and Lenders each Lender by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 11 shall not be discharged until payment and performance, in full, of the Obligations Liabilities has occurred, and that its obligations under this Section 12 11 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) , the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document Ancillary Agreement or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) ; the absence of any action to enforce this Agreement (including this Section 1211) or any other Loan Document Ancillary Agreement or the waiver or consent by Agent and Lenders each Lender with respect to any of the provisions thereof;
(c) ; the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations Liabilities or any action, or the absence of any action, by Agent and Lenders each Lender in respect thereof (including the release of any such security);
(d) ; the insolvency of any Credit PartyBorrower; or
(e) or any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations Liabilities guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Guarantor (including, for the avoidance of doubt, each Borrower hereby agrees that such Borrower is with respect to the Obligations of each other Borrower), jointly and severally liable forseverally, and hereby absolutely and unconditionally guarantees to Agent and Lenders the Agent, the Lenders, the Holders and their respective successors and assigns, assigns the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other BorrowerObligations. Each Borrower Guarantor agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 ARTICLE 9 shall not be discharged until payment and performance, in full, of the Obligations under the Transaction Documents has occurredoccurred and all commitments (if any) to lend hereunder have been terminated, and that its obligations under this Section 12 ARTICLE 9 shall be primary, absolute and unconditional, irrespective of, and to the extent permitted by law, unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Transaction Document or any other agreement, document or instrument to which any Borrower Credit Party is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12ARTICLE 9) or any other Loan Transaction Document or the waiver or consent by Agent and the Agent, the Lenders or the Holders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence Insolvency of any action, by Agent and Lenders in respect thereof (including the release Credit Party or Subsidiary of any such security);
(d) the insolvency of any a Credit Party; or
(ed) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower Guarantor shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any other Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);; 106
(d) the insolvency of any other Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantorguarantor other than the payment and performance, in full, of the Obligations. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Agent, Lenders and Lenders each Secured Swap Provider and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders Lender by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor, it being agreed by each Borrower that its obligations under this Section 12 shall not be discharged until the payment and performance, in full, of the Obligations has occurred. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Samples: Credit Agreement (Ringer Corp /Mn/)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 14 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 14 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 1214) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Loan Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower Xxxxxxxx is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the Administrative Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Administrative Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 Article XIV shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 Article XIV shall be absolute and unconditional, irrespective of, and unaffected by,:
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12Article XIV) or any other Loan Document or the waiver or consent by Administrative Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyBorrower or Guarantor; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Samples: Loan Agreement (Cornerstone Core Properties REIT, Inc.)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower Bxxxxxxx is jointly and severally JOINTLY SEVERALLY AND IN SOLIDO liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations Indebtedness owed or hereafter owing to Agent and Lenders Lender by each other any Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 2(h) shall not be discharged until indefeasible payment and performance, performance (subject to the proviso in full, the immediately preceding sentence) in full of the Obligations Indebtedness has occurred, and that its obligations under this Section 12 2(h) shall be absolute and unconditional, irrespective of, of and unaffected by,:
(ai) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(bii) the absence of any action to enforce this Agreement (Agreement, including this Section 12) 2(h), or any other Loan Document or the waiver or consent by Agent and Lenders Lender with respect to any of the provisions thereof;
(ciii) the existence, value or condition of, or failure to perfect its Lien lien against, any security or Collateral for the Obligations Indebtedness or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such securitysecurity or Collateral);
(div) the insolvency of any Credit PartyObligor; or
(ev) any other action or circumstances circumstance that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. LOAN AND SECURITY AGREEMENT – PAGE 9 THERMO COMMUNICATIONS FUNDING, LLC – Americrew, Inc. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations Indebtedness guaranteed hereunder. To the extent that any Borrower shall make a payment under this Section 2(h) of all or any of the Indebtedness (other than Loans made to such Borrower for which it is primarily liable) (a “Guarantor Payment”) that, taking into account all other Guarantor Payments then previously or concurrently made by any Borrower, exceeds the amount that such Borrower would otherwise have paid if each Borrower had paid the aggregate Indebtedness satisfied by such Guarantor Payment in the same proportion that such Borrower’s Allocable Amount (as defined below) (as determined immediately prior to such Guarantor Payment) bore to the aggregate Allocable Amounts of each of Borrower as determined immediately prior to the making of such Guarantor Payment, then, following indefeasible payment in full in cash of the Indebtedness, such Borrower shall be entitled to receive contribution and indemnification payments from, and be reimbursed by, each other Borrower for the amount of such excess, pro rata based upon their respective Allocable Amounts in effect immediately prior to such Guarantor Payment. As of any date of determination, the “Allocable Amount” of any Borrower shall be equal to the maximum amount of the claim that could then be recovered from such Borrower under this Section 2(h) without rendering such claim voidable or avoidable under Section 548 of Chapter 11 of the Bankruptcy Code or under any applicable state Uniform Fraudulent Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common law. This Section 2(h) is intended only to define the relative rights of each Borrower and nothing set forth herein is intended to or shall impair the obligations of any Borrower, jointly, severally and in solido, to pay any amounts as and when the same shall become due and payable in accordance with the terms of this Agreement. Nothing contained in this Section 2(h) shall limit the liability of any Borrower to pay the Loans made directly or indirectly to that Borrower and accrued interest, fees and expenses with respect thereto for which such Borrower shall be primarily liable. The liability of each Borrower under this Section 2(h) is in addition to and shall be cumulative with all other liabilities of any Borrower to Lender under the Loan Documents to which such Borrower is a party, without any limitation as to amount, unless the instrument or agreement evidencing or creating such other liability specifically provides to the contrary.
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 10 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 10 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 1210) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect or delay in perfecting its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Samples: Credit Agreement (Vertis Inc)
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is -------------- jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent Lender and Lenders and their respective its successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders Lender by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and ---------- performance, in full, of the Obligations has occurred, and that its obligations under this Section 12 shall be absolute and unconditional, irrespective of, and ---------- unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12) or any other Loan Document or the waiver or consent ---------- by Agent and Lenders Lender with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders Lender in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyBorrower; or
(e) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
Cross-Guaranty. Each Borrower hereby agrees that such Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders each Lender and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations Liabilities owed or hereafter owing to Agent and Lenders each Lender by each other Borrower. Each Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 9 shall not be discharged until payment and performance, in full, of the Obligations Liabilities has occurred, and that its obligations under this Section 12 9 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) , the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document Ancillary Agreement or any other agreement, document or instrument to which any Borrower is or may become a party;
(b) ; the absence of any action to enforce this Agreement (including this Section 129) or any other Loan Document Ancillary Agreement or the waiver or consent by Agent and Lenders each Lender with respect to any of the provisions thereof;
(c) ; the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations Liabilities or any action, or the absence of any action, by Agent and Lenders each Lender in respect thereof (including the release of any such security);
(d) ; the insolvency of any Credit PartyBorrower; or
(e) or any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations Liabilities guaranteed hereunder.
Appears in 1 contract
Samples: Loan and Security Agreement (I2 Telecom International Inc)
Cross-Guaranty. Each Co-Borrower hereby agrees that such Co-Borrower is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to the Administrative Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Secured Obligations owed or hereafter owing to the Administrative Agent and Lenders by each other Co-Borrower. Each Co-Borrower agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 Article XI shall not be discharged until payment and performance, in full, of the Secured Obligations has occurred, and that its obligations under this Section 12 Article XI shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Co-Borrower is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section 12Article XI) or any other Loan Document or the waiver or consent by the Administrative Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit PartyCo-Borrower or Subsidiary; or
(ed) any other action or circumstances that might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor. Each Co-Borrower shall be regarded, and shall be in the same position, as principal debtor with respect to the Secured Obligations guaranteed hereunder.
Appears in 1 contract
Samples: Credit Agreement (Ennis, Inc.)
Cross-Guaranty. Each Borrower Credit Party hereby agrees that such Borrower Credit Party is jointly and severally liable for, and hereby absolutely and unconditionally guarantees to Agent and Lenders and their respective successors and assigns, the full and prompt payment (whether at stated maturity, by acceleration or otherwise) and performance of, all Obligations owed or hereafter owing to Agent and Lenders by each other BorrowerCredit Party. Each Borrower Credit Party agrees that its guaranty obligation hereunder is a continuing guaranty of payment and performance and not of collection, that its obligations under this Section 12 shall not be discharged until payment and performance, in full, of the Obligations has occurred, and that its obligations under this Section SECTION 12 shall be absolute and unconditional, irrespective of, and unaffected by,
(a) the genuineness, validity, regularity, enforceability or any future amendment of, or change in, this Agreement, any other Loan Document or any other agreement, document or instrument to which any Borrower Credit Party is or may become a party;
(b) the absence of any action to enforce this Agreement (including this Section SECTION 12) or any other Loan Document or the waiver or consent by Agent and Lenders with respect to any of the provisions thereof;
(c) the existence, value or condition of, or failure to perfect its Lien against, any security for the Obligations or any action, or the absence of any action, by Agent and Lenders in respect thereof (including the release of any such security);
(d) the insolvency of any Credit Party; or
(e) any other action or circumstances that which might otherwise constitute a legal or equitable discharge or defense of a surety or guarantor,
(f) it being agreed by each Credit Party that its obligations under this SECTION 12 shall not be discharged until the payment and performance, in full, of the Obligations has occurred. Each Borrower Credit Party shall be regarded, and shall be in the same position, as principal debtor with respect to the Obligations guaranteed hereunder.
Appears in 1 contract
